the stenographic transcripts in question, are valid, just and
THE CONCEPT OF THE STATE
[G.R. No. L-9657. November 29, 1956.]
LEOPOLDO T. BACANI and MATEO A.
MATOTO, Plaintiffs-Appellees, vs. NATIONAL COCONUT
CORPORATION, ET AL., Defendants, NATIONAL COCONUT
CORPORATION and BOARD OF
LIQUIDATORS, Defendants-Appellants.
DECISION
BAUTISTA ANGELO, J.:
Plaintiffs herein are court stenographers assigned in Branch
VI of the Court of First Instance of Manila. During the
pendency of Civil Case No. 2293 of said court, entitled
Francisco Sycip vs. National Coconut Corporation, Assistant
Corporate Counsel Federico Alikpala, counsel for Defendant,
requested said stenographers for copies of the transcript of
the stenographic notes taken by them during the
hearing. Plaintiffs complied with the request by delivering to
Counsel Alikpala the needed transcript containing 714 pages
and thereafter submitted to him their bills for the payment of
their fees. The National Coconut Corporation paid the
amount of P564 to Leopoldo T. Bacani and P150 to Mateo A.
Matoto for said transcript at the rate of P1 per page.
Upon inspecting the books of this corporation, the Auditor
General disallowed the payment of these fees and sought the
recovery of the amounts paid. On January 19, 1953, the
Auditor General required the Plaintiffs to reimburse said
amounts on the strength of a circular of the Department of
Justice wherein the opinion was expressed that the National
Coconut Corporation, being a government entity, was
exempt from the payment of the fees in question. On
February 6, 1954, the Auditor General issued an order
directing the Cashier of the Department of Justice to deduct
from the salary of Leopoldo T. Bacani the amount of P25
every payday and from the salary of Mateo A. Matoto the
amount of P10 every payday beginning March 30, 1954. To
prevent deduction of these fees from their salaries and
secure a judicial ruling that the National Coconut Corporation
is not a government entity within the purview of section 16,
Rule 130 of the Rules of Court, this action was instituted in
the Court of First Instance of Manila.
Defendants set up as a defense that the National Coconut
Corporation is a government entity within the purview of
section 2 of the Revised Administrative Code of 1917 and,
hence, it is exempt from paying the stenographers’ fees
under Rule 130 of the Rules of Court. After trial, the court
found for the Plaintiffs declaring (1) “that Defendant National
Coconut Corporation is not a government entity within the
purview of section 16, Rule 130 of the Rules of Court; chan
roblesvirtualawlibrary(2) that the payments already made by
said Defendant to Plaintiffs herein and received by the latter
from the former in the total amount of P714, for copies of
legal; chan roblesvirtualawlibraryand (3) that Plaintiffs are
under no obligation whatsoever to make a refund of these
payments already received by them.” This is an appeal from
said decision.
Under section 16, Rule 130 of the Rules of Court, the
Government of the Philippines is exempt from paying the
legal fees provided for therein, and among these fees are
those which stenographers may charge for the transcript of
notes taken by them that may be requested by any
interested person (section 8). The fees in question are for the
transcript of notes taken during the hearing of a case in
which the National Coconut Corporation is interested, and
the transcript was requested by its assistant corporate
counsel for the use of said corporation.
On the other hand, section 2 of the Revised Administrative
Code defines the scope of the term “Government of the
Republic of the Philippines” as
follows:chanroblesvirtuallawlibrary
“‘The Government of the Philippine Islands’ is a term which
refers to the corporate governmental entity through which
the functions of government are exercised throughout the
Philippine Islands, including, save as the contrary appears
from the context, the various arms through which political
authority is made effective in said Islands, whether pertaining
to the central Government or to the provincial or municipal
branches or other form of local government.”
The question now to be determined is whether the National
Coconut Corporation may be considered as included in the
term “Government of the Republic of the Philippines” for the
purposes of the exemption of the legal fees provided for in
Rule 130 of the Rules of Court.
As may be noted, the term “Government of the Republic of
the Philippines” refers to a government entity through which
the functions of government are exercised, including the
various arms through which political authority is made
effective in the Philippines, whether pertaining to the central
government or to the provincial or municipal branches or
other form of local government. This requires a little
digression on the nature and functions of our government as
instituted in our Constitution.
To begin with, we state that the term “Government” may be
defined as “that institution or aggregate of institutions by
which an independent society makes and carries out those
rules of action which are necessary to enable men to live in a
social state, or which are imposed upon the people forming
that society by those who possess the power or authority of
prescribing them” (U.S. vs. Dorr, 2 Phil., 332). This institution,
when referring to the national government, has reference to
what our Constitution has established composed of three
great departments, the legislative, executive, and the judicial,
through which the powers and functions of government are
exercised. These functions are
twofold:chanroblesvirtuallawlibrary constitute and ministrant.
The former are those which constitute the very bonds of
society and are compulsory in nature; chan
roblesvirtualawlibrarythe latter are those that are
undertaken only by way of advancing the general interests of
society, and are merely optional. President Wilson
enumerates the constituent functions as
follows:chanroblesvirtuallawlibrary
“‘(1) The keeping of order and providing for the protection of
persons and property from violence and robbery.
‘(2) The fixing of the legal relations between man and wife
and between parents and children.
‘(3) The regulation of the holding, transmission, and
interchange of property, and the determination of its
liabilities for debt or for crime.
‘(4) The determination of contract rights between
individuals.
‘(5) The definition and punishment of crime.
‘(6) The administration of justice in civil cases.
‘(7) The determination of the political duties, privileges, and
relations of citizens.
‘(8) Dealings of the state with foreign
powers:chanroblesvirtuallawlibrary the preservation of the
state from external danger or encroachment and the
advancement of its international interests.’“ (Malcolm, The
Government of the Philippine Islands, p. 19.)
The most important of the ministrant functions
are:chanroblesvirtuallawlibrary public works, public
education, public charity, health and safety regulations, and
regulations of trade and industry. The principles deter mining
whether or not a government shall exercise certain of these
optional functions are:chanroblesvirtuallawlibrary (1) that a
government should do for the public welfare those things
which private capital would not naturally undertake and (2)
that a government should do these things which by its very
nature it is better equipped to administer for the public
welfare than is any private individual or group of individuals.
(Malcolm, The Government of the Philippine Islands, pp.
19-20.)
From the above we may infer that, strictly speaking, there
are functions which our government is required to exercise
to promote its objectives as expressed in our Constitution
and which are exercised by it as an attribute of sovereignty,
and those which it may exercise to promote merely the
welfare, progress and prosperity of the people. To this latter
class belongs the organization of those corporations owned
or controlled by the government to promote certain aspects
of the economic life of our people such as the National
Coconut Corporation. These are what we call
government-owned or controlled corporations which may
take on the form of a private enterprise or one organized
with powers and formal characteristics of a private
corporations under the Corporation Law.
The question that now arises
is:chanroblesvirtuallawlibrary Does the fact that these
corporation perform certain functions of government make
them a part of the Government of the Philippines?
The answer is simple:chanroblesvirtuallawlibrary they do not
acquire that status for the simple reason that they do not
come under the classification of municipal or public
corporation. Take for instance the National Coconut
Corporation. While it was organized with the purpose of
“adjusting the coconut industry to a position independent of
trade preferences in the United States” and of providing
“Facilities for the better curing of copra products and the
proper utilization of coconut by-products”, a function which
our government has chosen to exercise to promote the
coconut industry, however, it was given a corporate power
separate and distinct from our government, for it was made
subject to the provisions of our Corporation Law in so far as
its corporate existence and the powers that it may exercise
are concerned (sections 2 and 4, Commonwealth Act No.
518). It may sue and be sued in the same manner as any
other private corporations, and in this sense it is an entity
different from our government. As this Court has aptly said,
“The mere fact that the Government happens to be a
majority stockholder does not make it a public corporation”
(National Coal Co. vs. Collector of Internal Revenue, 46 Phil.,
586-587). “By becoming a stockholder in the National Coal
Company, the Government divested itself of its sovereign
character so far as respects the transactions of the
corporation cralaw . Unlike the Government, the corporation
may be sued without its consent, and is subject to taxation.
Yet the National Coal Company remains an agency or
instrumentality of government.” (Government of the
Philippine Islands vs. Springer, 50 Phil., 288.)
To recapitulate, we may mention that the term “Government
of the Republic of the Philippines” used in section 2 of the
Revised Administrative Code refers only to that government
entity through which the functions of the government are
exercised as an attribute of sovereignty, and in this are
included those arms through which political authority is
made effective whether they be provincial, municipal or
other form of local government. These are what we call
municipal corporations. They do not include government
entities which are given a corporate personality separate and
distinct from the government and which are governed by the
Corporation Law. Their powers, duties and liabilities have to
be determined in the light of that law and of their corporate
charters. They do not therefore come within the exemption
clause prescribed in section 16, Rule 130 of our Rules of
Court.
“Public corporations are those formed or organized for the
government of a portion of the State.” (Section 3, Republic
Act No. 1459, Corporation Law).
“‘The generally accepted definition of a municipal
corporation would only include organized cities and towns,
and like organizations, with political and legislative powers
for the local, civil government and police regulations of the
inhabitants of the particular district included in the
boundaries of the corporation.’ Heller vs. Stremmel, 52 Mo.
309, 312.”
“In its more general sense the phrase ‘municipal corporation’
may include both towns and counties, and other public
corporations created by government for political purposes. In
its more common and limited signification, it embraces only
incorporated villages, towns and cities. Dunn vs. Court of
County Revenues, 85 Ala. 144, 146, 4 So. 661.” (McQuillin,
Municipal Corporations, 2nd ed., Vol. 1, p. 385.)
“We may, therefore, define a municipal corporation in its
historical and strict sense to be the incorporation, by the
authority of the government, of the inhabitants of a
particular place or district, and authorizing them in their
corporate capacity to exercise subordinate specified powers
of legislation and regulation with respect to their local and
internal concerns. This power of local government is the
distinctive purpose and the distinguishing feature of a
municipal corporation proper.” (Dillon, Municipal
Corporations, 5th ed., Vol. I, p. 59.)
It is true that under section 8, Rule 130, stenographers may
only charge as fees P0.30 for each page of transcript of not
less than 200 words before the appeal is taken and P0.15 for
each page after the filing of the appeal, but in this case the
National Coconut Corporation has agreed and in fact has paid
P1.00 per page for the services rendered by the Plaintiffs and
has not raised any objection to the amount paid until its
propriety was disputed by the Auditor General. The payment
of the fees in question became therefore contractual and as
such is valid even if it goes beyond the limit prescribed in
section 8, Rule 130 of the Rules of Court.
As regards the question of procedure raised by Appellants,
suffice it to say that the same is insubstantial, considering
that this case refers not to a money claim disapproved by the
Auditor General but to an action of prohibition the purpose
of which is to restrain the officials concerned from deducting
from Plaintiffs’ salaries the amount paid to them as
stenographers’ fees. This case does not come under section 1,
Rule 45 of the Rules of Court relative to appeals from a
decision of the Auditor General.
Wherefore, the decision appealed from is affirmed, without
pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador,
Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

G.R. No. L-32052 July 25, 1975
PHILIPPINE VIRGINIA TOBACCO
ADMINISTRATION, petitioner,
vs.
COURT OF INDUSTRIAL RELATIONS, REUEL ABRAHAM,
MILAGROS ABUEG, AVELINO ACOSTA, CAROLINA ACOSTA,
MARTIN AGSALUD, JOSEFINA AGUINALDO, GLORIA ALBANO,
ANTONIO ALUNING, COSME ALVAREZ, ISABEL ALZATE,
AURORA APUSEN, TOMAS ARCANGEL, LOURDES
ARJONELLO, MANUEL AROMIN, DIONISIO ASISTIN, JOSE
AURE, NICASIO AZNAR, EUGENIO AZURIN, CLARITA
BACUGAN, PIO BALAGOT, HEREDIO BALMACEDA, ESTHER
BANAAG, JOVENCIO BARBERO, MONICO BARBADILLO,
HERNANDO BARROZO, FILIPINA BARROZO, REMEDIO
BARTOLOME, ANGELINA BASCOS, JOSE BATALLA, ALMARIO
BAUTISTA, EUGENIO BAUTISTA, JR., HERMALO BAUTISTA,
JUANITO BAUTISTA, SEVERINO BARBANO, CAPPIA
BARGONIA, ESMERALDA BERNARDEZ, RUBEN BERNARDEZ,
ALFREDO BONGER, TOMAS BOQUIREN, ANGELINA BRAVO,
VIRGINIA BRINGA, ALBERTO BUNEO, SIMEON CABANAYAN,
LUCRECIA CACATIAN, LEONIDES CADAY, ANGELINA
CADOTTE, IGNACIO CALAYCAY, PACIFICO CALUB, RUFINO
CALUZA, CALVIN CAMBA, ALFREDO CAMPOSENO,
BAGUILITA CANTO, ALFREDO CARRERA, PEDRO CASES,
CRESCENTE CASIS, ERNESTO CASTANEDA, HERMINIO
CASTILLO, JOSE CASTRO, LEONOR CASTRO, MADEO CASTRO,
MARIA PINZON CASTRO, PABLO CATURA, RESTITUTO
CESPADES, FLORA CHACON, EDMUNDO CORPUZ, ESTHER
CRUZ, CELIA CUARESMA, AQUILINO DACAYO, DIONISIA
DASALLA, SOCORRO DELFIN, ABELARDO DIAZ, ARTHUR DIAZ,
CYNTHIA DIZON, MARCIA DIZON, ISABELO DOMINGO,
HONORATA DOZA, CAROLINA DUAD, JUSTINIANO EPISTOLA,
ROMEO ENCARNACION, PRIMITIVO ESCANO, ELSA ESPEJO,
JUAN ESPEJO, RIZALINA ESQUILLO, YSMAEL FARINAS,
LORNA FAVIS, DAN FERNANDEZ, JAIME FERNANDEZ,
ALFREDO FERRER, MODESTO FERRER, JR., EUGENIO
FLANDEZ, GUILLERMO FLORENDO, ALFREDO FLORES,
DOMINGA FLORES, ROMEO FLORES, LIGAYA FONTANILLA,
MELCHOR GASMEN, LEILA GASMENA, CONSUELO
GAROLAGA, ALFONSO GOROSPE, CESAR GOROSPE,
RICARDO GOROSPE, JR., CARLITO GUZMAN, ERNESTO DE
GUZMAN, THELMA DE GUZMAN, FELIX HERNANDEZ,
SOLIVEN HERNANDO, FRANCISCO HIDALGO, LEONILO INES,
SIXTO JAQUIES, TRINIDAD JAVIER, FERMIN LAGUA,
GUALBERTO LAMBINO, ROMAN LANTING, OSCAR LAZO,
ROSARIO LAZO, JOSEFINA DE LARA, AMBROSIO LAZOL,
NALIE LIBATIQUE, LAMBERTO LLAMAS, ANTONIO LLANES,
ROMULA LOPEZ, ADRIANO LORENZANA, ANTONIO
MACARAEG, ILDEFONSO MAGAT, CECILIO MAGHANOY,
ALFONSO MAGSANOC, AVELINA MALLARE, AUGUSTO
MANALO, DOMINADOR MANASAN, BENITO MANECLANG,
JR., TIRSO MANGUMAY, EVELIA MANZANO, HONORANTE
MARIANO, DOMINGO MEDINA, MARTIN MENDOZA,
PERFECTO MILANA, EMILIO MILLAN, GREGORIO MONEGAS,
CONSOLACION NAVALTA, NOLI OCAMPO, VICENTE
CLEGARIO, ELPIDIO PALMONES, ARACELI PANGALANGAN,
ISIDORO PANLASIGUI, JR., ARTEMIO PARIS, JR., FEDERICO
PAYUMO, JR., NELIA PAYUMO, BITUEN PAZ, FRANCISCO
PENGSON, OSCAR PERALTA, PROCORRO PERALTA, RAMON
PERALTA, MINDA PICHAY, MAURO PIMENTEL, PRUDENCIO
PIMENTEL, LEOPOLDO PUNO, REYNALDO RABE, ROLANDO
REA, CONSTANTINO REA, CECILIA RICO, CECILIO RILLORAZA,
AURORA ROMAN, MERCEDES RUBIO, URSULA RUPISAN,
OLIVIA SABADO, BERNARDO SACRAMENTO, LUZ SALVADOR,
JOSE SAMSON, JR., ROMULA DE LOS SANTOS, ANTONIO
SAYSON, JR., FLORANTE SERIL, MARIO SISON, RUDY SISON,
PROCEDIO TABIN, LUCENA TABISULA, HANNIBAL TAJANO,
ENRIQUE TIANGCO, JR., JUSTINIANO TOBIAS, NYMIA
TOLENTINO, CONSTANTE TOLENTINO, TEODORO TOREBIO,
FEDERICO TRINIDAD, JOVENCINTO TRINIDAD, LAZARO
VALDEZ, LUDRALINA VALDEZ, MAXIMINA VALDEZ,
FRANCISCO VELASCO, JR., ROSITA VELASCO, SEVERO
VANTANILLA, VENANCIO VENTIGAN, FELICITAS VENUS,
NIEVES DE VERA, ELISEO VERSOZA, SILVESTRE VILA, GLORIA
VILLAMOR, ALEJANDRO VELLANUEVA, DAVID VILLANUEVA,
CAROLINA VILLASENOR ORLANDO VILLASTIQUE, MAJELLA
VILORIN, ROSARIO VILORIA, MAY VIRATA, FEDERICO VIRAY,
MELBA YAMBAO, MARIO ZAMORA, AUTENOR ABUEG,
SOTERO ACEDO, HONRADO ALBERTO, FELIPE ALIDO,
VICENTE ANCHUELO, LIBERTAD APEROCHO, MARIANO
BALBAGO, MARIO BALMACEDA, DAISY BICENIO, SYLVIA
BUSTAMANTE, RAYMUNDO GEMERINO, LAZARO CAPURAS,
ROGELIO CARUNGCONG, ZACARIAS CAYETANO, JR., LILY
CHUA, ANDRES CRUZ, ARTURO CRUZ, BIENVENIDO ESTEBAN,
PABLO JARETA, MANUEL JOSE, NESTORIA KINTANAR,
CLEOPATRIA LAZEM. MELCHOR LAZO, JESUS LUNA, GASPAR
MARINAS, CESAR MAULSON, MANUEL MEDINA, JESUS
PLURAD, LAKAMBINI RAZON, GLORIA IBANEZ, JOSE SANTOS,
ELEAZAR SQUI, JOSE TAMAYO, FELIPE TENORIO, SILVINO
UMALI, VICENTE ZARA, SATURNINO GARCIA, WILLIAM
GARCIA, NORMA GARINGARAO, ROSARIO ANTONIO, RUBEN
BAUTISTA, QUIRINO PUESTO, NELIA M. GOMERI, OSCAR R.
LANUZA, AURORA M. LINDAYA, GREGORIO MOGSINO,
JACRM B. PAPA, GREGORIO R. RIEGO, TERESITA N. ROZUL,
MAGTANGOL SAMALA, PORFIRIO AGOCOLIS, LEONARDO
MONTE, HERMELINO PATI, ALFREDO PAYOYO,
PURIFICACION ROJAS, ODANO TEANO, RICARDO SANTIAGO,
and MARCELO MANGAHAS, respondents.
Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys
Manuel M. Lazaro and Vicente Constantine, Jr., for petitioner.
Renato B. Kare and Simeon C. Sato for private respondents.
FERNANDO, J.:
The principal issue that calls for resolution in this appeal
by certiorari from an order of respondent Court of Industrial
Relations is one of constitutional significance. It is concerned
with the expanded role of government necessitated by the
increased responsibility to provide for the general welfare.
More specifically, it deals with the question of whether
petitioner, the Philippine Virginia Tobacco Administration,
discharges governmental and not proprietary functions. The
landmark opinion of the then Justice, row Chief Justice,
Makalintal in Agricultural Credit and Cooperative Financing
Administration v. Confederation of Unions in Government
Corporations and offices, points the way to the right
answer.1 It interpreted the then fundamental law as hostile
to the view of a limited or negative state. It is antithetical to
the laissez faire concept. For as noted in an earlier decision,
the welfare state concept "is not alien to the philosophy of
[the 1935] Constitution."2 It is much more so under the
present Charter, which is impressed with an even more
explicit recognition of social and economic rights. 3 There is
manifest, to recall Laski, "a definite increase in the profundity
of the social conscience," resulting in "a state which seeks to
realize more fully the common good of its members." 4 It does
not necessarily follow, however, just because petitioner is
engaged in governmental rather than proprietary functions,
that the labor controversy was beyond the jurisdiction of the
now defunct respondent Court. Nor is the objection raised
that petitioner does not come within the coverage of the
Eight-Hour Labor Law persuasive.5 We cannot then grant the
reversal sought. We affirm.
The facts are undisputed. On December 20, 1966, claimants,
now private respondents, filed with respondent Court a
petition wherein they alleged their employment relationship,
the overtime services in excess of the regular eight hours a
day rendered by them, and the failure to pay them overtime
compensation in accordance with Commonwealth Act No.
444. Their prayer was for the differential between the
amount actually paid to them and the amount allegedly due
them.6 There was an answer filed by petitioner Philippine
Virginia Tobacco Administration denying the allegations and
raising the special defenses of lack of a cause of action and
lack of jurisdiction.7 The issues were thereafter joined, and
the case set for trial, with both parties presenting their
evidence.8 After the parties submitted the case for decision,
the then Presiding Judge Arsenio T. Martinez of respondent
Court issued an order sustaining the claims of private
respondents for overtime services from December 23, 1963
up to the date the decision was rendered on March 21, 1970,
and directing petitioner to pay the same, minus what it had
already paid.9 There was a motion for reconsideration, but
respondent Court en banc denied the same. 10 Hence this
petition for certiorari.
Petitioner Philippine Virginia Tobacco Administration, as had
been noted, would predicate its plea for the reversal of the
order complained of on the basic proposition that it is
beyond the jurisdiction of respondent Court as it is exercising
governmental functions and that it is exempt from the
operation of Commonwealth Act No. 444. 11 While, to repeat,
its submission as to the governmental character of its
operation is to be given credence, it is not a necessary
consequence that respondent Court is devoid of jurisdiction.
Nor could the challenged order be set aside on the additional
argument that the Eight-Hour Labor Law is not applicable to
it. So it was, at the outset, made clear.
1. A reference to the enactments creating petitioner
corporation suffices to demonstrate the merit of petitioner's
plea that it performs governmental and not proprietary
functions. As originally established by Republic Act No.
2265, 12 its purposes and objectives were set forth thus: "(a)
To promote the effective merchandising of Virginia tobacco
in the domestic and foreign markets so that those engaged in
the industry will be placed on a basis of economic security; (b)
To establish and maintain balanced production and
consumption of Virginia tobacco and its manufactured
products, and such marketing conditions as will insure and
stabilize the price of a level sufficient to cover the cost of
production plus reasonable profit both in the local as well as
in the foreign market; (c) To create, establish, maintain, and
operate processing, warehousing and marketing facilities in
suitable centers and supervise the selling and buying of
Virginia tobacco so that the farmers will enjoy reasonable
prices that secure a fair return of their investments; (d) To
prescribe rules and regulations governing the grading,
classifying, and inspecting of Virginia tobacco; and (e) To
improve the living and economic conditions of the people
engaged in the tobacco industry." 13The amendatory statute,
Republic Act No. 4155, 14 renders even more evident its
nature as a governmental agency. Its first section on the
declaration of policy reads: "It is declared to be the national
policy, with respect to the local Virginia tobacco industry, to
encourage the production of local Virginia tobacco of the
qualities needed and in quantities marketable in both
domestic and foreign markets, to establish this industry on an
efficient and economic basis, and, to create a climate
conducive to local cigarette manufacture of the qualities
desired by the consuming public, blending imported and
native Virginia leaf tobacco to improve the quality of locally
manufactured cigarettes." 15 The objectives are set forth thus:
"To attain this national policy the following objectives are
hereby adopted: 1. Financing; 2. Marketing; 3. The disposal of
stocks of the Agricultural Credit Administration (ACA) and the
Philippine Virginia Tobacco Administration (PVTA) at the best
obtainable prices and conditions in order that a reinvigorated
Virginia tobacco industry may be established on a sound
basis; and 4. Improving the quality of locally manufactured
cigarettes through blending of imported and native Virginia
leaf tobacco; such importation with corresponding
exportation at a ratio of one kilo of imported to four kilos of
exported Virginia tobacco, purchased by the
importer-exporter from the Philippine Virginia Tobacco
Administration." 16
It is thus readily apparent from a cursory perusal of such
statutory provisions why petitioner can rightfully invoke the
doctrine announced in the leading Agricultural Credit and
Cooperative Financing Administration decision 17 and why the
objection of private respondents with its overtones of the
distinction between constituent and ministrant functions of
governments as set forth in Bacani v. National Coconut
Corporation 18 if futile. The irrelevance of such a distinction
considering the needs of the times was clearly pointed out by
the present Chief Justice, who took note, speaking of the
reconstituted Agricultural Credit Administration, that
functions of that sort "may not be strictly what President
Wilson described as "constituent" (as distinguished from
"ministrant"),such as those relating to the maintenance of
peace and the prevention of crime, those regulating property
and property rights, those relating to the administration of
justice and the determination of political duties of citizens,
and those relating to national defense and foreign relations.
Under this traditional classification, such constituent
functions are exercised by the State as attributes of
sovereignty, and not merely to promote the welfare,
progress and prosperity of the people — these latter
functions being ministrant, the exercise of which is optional
on the part of the government." 19Nonetheless, as he
explained so persuasively: "The growing complexities of
modern society, however, have rendered this traditional
classification of the functions of government quite unrealistic,
not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the government
was called upon to enter optionally, and only "because it was
better equipped to administer for the public welfare than is
any private individual or group of individuals", continue to
lose their well-defined boundaries and to be absorbed within
activities that the government must undertake in its
sovereign capacity if it is to meet the increasing social
challenges of the times. Here as almost everywhere else the
tendency is undoubtedly towards a greater socialization of
economic forces. Here of course this development was
envisioned, indeed adopted as a national policy, by the
Constitution itself in its declaration of principle concerning
the promotion of social justice." 20 Thus was laid to rest the
doctrine in Bacani v. National Coconut Corporation, 21 based
on the Wilsonian classification of the tasks incumbent on
government into constituent and ministrant in accordance
with the laissez faire principle. That concept, then dominant
in economics, was carried into the governmental sphere, as
noted in a textbook on political science, 22 the first edition of
which was published in 1898, its author being the then
Professor, later American President, Woodrow Wilson. He
took pains to emphasize that what was categorized by him as
constituent functions had its basis in a recognition of what
was demanded by the "strictest [concept of] laissez faire, [as
they] are indeed the very bonds of society." 23 The other
functions he would minimize as ministrant or optional.
It is a matter of law that in the Philippines, the laissez
faire principle hardly commanded the authoritative position
which at one time it held in the United States. As early as
1919, Justice Malcolm in Rubi v. Provincial Board 24 could
affirm: "The doctrines of laissez faire and of unrestricted
freedom of the individual, as axioms of economic and
political theory, are of the past. The modern period has
shown a widespread belief in the amplest possible
demonstration of government activity." 25 The 1935
Constitution, as was indicated earlier, continued that
approach. As noted in Edu v. Ericta:26 "What is more, to erase
any doubts, the Constitutional Convention saw to it that the
concept of laissez-faire was rejected. It entrusted to our
government the responsibility of coping with social and
economic problems with the commensurate power of control
over economic affairs. Thereby it could live up to its
commitment to promote the general welfare through state
action." 27 Nor did the opinion in Edu stop there: "To repeat,
our Constitution which took effect in 1935 erased whatever
doubts there might be on that score. Its philosophy is a
repudiation of laissez-faire. One of the leading members of
the Constitutional Convention, Manuel A. Roxas, later the
first President of the Republic, made it clear when he
disposed of the objection of Delegate Jose Reyes of Sorsogon,
who noted the "vast extensions in the sphere of
governmental functions" and the "almost unlimited power to
interfere in the affairs of industry and agriculture as well as
to compete with existing business" as "reflections of the
fascination exerted by [the then] current tendencies' in other
jurisdictions. He spoke thus: "My answer is that this
constitution has a definite and well defined philosophy, not
only political but social and economic.... If in this Constitution
the gentlemen will find declarations of economic policy they
are there because they are necessary to safeguard the
interest and welfare of the Filipino people because we
believe that the days have come when in self-defense, a
nation may provide in its constitution those safeguards, the
patrimony, the freedom to grow, the freedom to develop
national aspirations and national interests, not to be
hampered by the artificial boundaries which a constitutional
provision automatically imposes." 28
It would be then to reject what was so emphatically stressed
in the Agricultural Credit Administration decision about
which the observation was earlier made that it reflected the
philosophy of the 1935 Constitution and is even more in
consonance with the expanded role of government accorded
recognition in the present Charter if the plea of petitioner
that it discharges governmental function were not heeded.
That path this Court is not prepared to take. That would be to
go backward, to retreat rather than to advance. Nothing can
thus be clearer than that there is no constitutional obstacle
to a government pursuing lines of endeavor, formerly
reserved for private enterprise. This is one way, in the
language of Laski, by which through such activities, "the
harsh contract which [does] obtain between the levels of the
rich and the poor" may be minimized. 29 It is a response to a
trend noted by Justice Laurel in Calalang v. Williams 30 for the
humanization of laws and the promotion of the interest of all
component elements of society so that man's innate
aspirations, in what was so felicitously termed by the First
Lady as "a compassionate society" be attained. 31
2. The success that attended the efforts of petitioner to be
adjudged as performing governmental rather than
proprietary functions cannot militate against respondent
Court assuming jurisdiction over this labor dispute. So it was
mentioned earlier. As far back as Tabora v.
Montelibano, 32 this Court, speaking through Justice Padilla,
declared: The NARIC was established by the Government to
protect the people against excessive or unreasonable rise in
the price of cereals by unscrupulous dealers. With that main
objective there is no reason why its function should not be
deemed governmental. The Government owes its very
existence to that aim and purpose — to protect the
people." 33 In a subsequent case, Naric Worker's Union v. Hon.
Alvendia, 34 decided four years later, this Court, relying
on Philippine Association of Free Labor Unions v.
Tan, 35 which specified the cases within the exclusive
jurisdiction of the Court of Industrial Relations, included
among which is one that involves hours of employment
under the Eight-Hour Labor Law, ruled that it is precisely
respondent Court and not ordinary courts that should pass
upon that particular labor controversy. For Justice J. B. L.
Reyes, the ponente, the fact that there were judicial as well
as administrative and executive pronouncements to the
effect that the Naric was performing governmental functions
did not suffice to confer competence on the then respondent
Judge to issue a preliminary injunction and to entertain a
complaint for damages, which as pointed out by the labor
union, was connected with an unfair labor practice. This is
emphasized by the dispositive portion of the decision:
"Wherefore, the restraining orders complained of, dated May
19, 1958 and May 27, 1958, are set aside, and the complaint
is ordered dismissed, without prejudice to the National Rice
and Corn Corporation's seeking whatever remedy it is
entitled to in the Court of Industrial Relations." 36 Then, too,
in a case involving petitioner itself, Philippine Virginia
Tobacco Administration, 37 where the point in dispute was
whether it was respondent Court or a court of first instance
that is possessed of competence in a declaratory relief
petition for the interpretation of a collective bargaining
agreement, one that could readily be thought of as pertaining
to the judiciary, the answer was that "unless the law speaks
clearly and unequivocally, the choice should fall on the Court
of Industrial Relations." 38 Reference to a number of decisions
which recognized in the then respondent Court the
jurisdiction to determine labor controversies by
government-owned or controlled corporations lends to report of his findings to the Court for further disposition
support to such an approach. 39 Nor could it be explained thereof." Accordingly, as provided by the New Labor Code,
only on the assumption that proprietary rather than this case is referred to the National Labor Relations
governmental functions did call for such a conclusion. It is to Commission for further proceedings conformably to law. No
be admitted that such a view was not previously bereft of costs.
plausibility. With the aforecited Agricultural Credit and
Cooperative Financing Administration decision rendering Makalintal, C.J., Castro, Barredo, Antonio, Esguerra, Aquino,
obsolete the Bacani doctrine, it has, to use a Wilsonian Concepcion Jr. and Martin, JJ., concur.
phrase, now lapsed into "innocuous
40
desuetude." Respondent Court clearly was vested with Makasiar, Muñoz Palma, JJ., took no part.
jurisdiction.
Teehankee J., is on leave.
3. The contention of petitioner that the Eight-Hour Labor
Law 41 does not apply to it hardly deserves any extended
consideration. There is an air of casualness in the way such
an argument was advanced in its petition for review as well
as in its brief. In both pleadings, it devoted less than a full
page to its discussion. There is much to be said for brevity,
but not in this case. Such a terse and summary treatment
appears to be a reflection more of the inherent weakness of
the plea rather than the possession of an advocate's enviable
talent for concision. It did cite Section 2 of the Act, but its
very language leaves no doubt that "it shall apply to all
persons employed in any industry or occupation, whether
public or private ... ." 42 Nor are private respondents included
among the employees who are thereby barred from enjoying
G.R. No. L-9959 December 13, 1916
the statutory benefits. It cited Marcelo v. Philippine National
Red Cross 43 and Boy Scouts of the Philippines v.
Araos.44 Certainly, the activities to which the two above THE GOVERNMENT OF THE PHILIPPINE ISLANDS,
public corporations devote themselves can easily be represented by the Treasurer of the Philippine
distinguished from that engaged in by petitioner. A reference Islands,plaintiff-appellee,
to the pertinent sections of both Republic Acts 2265 and vs.
2155 on which it relies to obtain a ruling as to its EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE
governmental character should render clear the MANILA, defendant-appellant.
differentiation that exists. If as a result of the appealed order,
financial burden would have to be borne by petitioner, it has William A. Kincaid and Thomas L. Hartigan for appellant.
only itself to blame. It need not have required private Attorney-General Avanceña for appellee.
respondents to render overtime service. It can hardly be
surmised that one of its chief problems is paucity of
personnel. That would indeed be a cause for astonishment. It
would appear, therefore, that such an objection based on TRENT, J.:
this ground certainly cannot suffice for a reversal. To repeat,
respondent Court must be sustained. About $400,000, were subscribed and paid into the treasury
of the Philippine Islands by the inhabitants of the Spanish
WHEREFORE, the appealed Order of March 21, 1970 and the Dominions of the relief of those damaged by the earthquake
Resolution of respondent Court en banc of May 8, 1970 which took place in the Philippine Islands on June 3, 1863.
denying a motion for reconsideration are hereby affirmed. Subsequent thereto and on October 6 of that year, a central
The last sentence of the Order of March 21, 1970 reads as relief board was appointed, by authority of the King of Spain,
follows: "To find how much each of them [private to distribute the moneys thus voluntarily contributed. After a
respondents] is entitled under this judgment, the Chief of the thorough investigation and consideration, the relief board
Examining Division, or any of his authorized representative, is allotted $365,703.50 to the various sufferers named in its
hereby directed to make a reexamination of records, papers resolution, dated September 22, 1866, and, by order of the
and documents in the possession of respondent PVTA Governor-General of the Philippine Islands, a list of these
pertinent and proper under the premises and to submit his allotments, together with the names of those entitled
thereto, was published in the Official Gazette of Manila dated
April 7, 1870. There was later distributed, inaccordance with
the above-mentioned allotments, the sum of $30,299.65,
leaving a balance of S365,403.85 for distribution. Upon the
petition of the governing body of the Monte de Piedad, dated
February 1, 1833, the Philippine Government, by order dated
the 1st of that month, directed its treasurer to turn over to
the Monte de Piedad the sum of $80,000 of the relief fund in
installments of $20,000 each. These amounts were received
on the following dates: February 15, March 12, April 14, and
June 2, 1883, and are still in the possession of the Monte de
Piedad. On account of various petitions of the persons, and
heirs of others to whom the above-mentioned allotments
were made by the central relief board for the payment of
those amounts, the Philippine Islands to bring suit against
the Monte de Piedad a recover, "through the
Attorney-General and in representation of the Government
of the Philippine Islands," the $80.000, together with interest,
for the benefit of those persons or their heirs appearing in
the list of names published in the Official Gazette instituted
on May 3, 1912, by the Government of the Philippine Islands,
represented by the Insular Treasurer, and after due trial,
judgment was entered in favor of the plaintiff for the sum of
$80,000 gold or its equivalent in Philippine currency, together
with legal interest from February 28, 1912, and the costs of
the cause. The defendant appealed and makes the following
assignment of errors:
1. The court erred in not finding that the eighty thousand
dollars ($80,000), give to the Monte de Piedad y Caja de
Ahorros, were so given as a donation subject to one condition,
to wit: the return of such sum of money to the Spanish
Government of these Islands, within eight days following the
day when claimed, in case the Supreme Government of Spain
should not approve the action taken by the former
government.
2. The court erred in not having decreed that this donation
had been cleared; said eighty thousand dollars ($80,000)
being at present the exclusive property of the appellant
the Monte de Piedad y Caja de Ahorros.
3. That the court erred in stating that the Government of the
Philippine Islands has subrogated the Spanish Government in
its rights, as regards an important sum of money resulting
from a national subscription opened by reason of the
earthquake of June 3, 1863, in these Island.
4. That the court erred in not declaring that Act Numbered
2109, passed by the Philippine Legislature on January 30,
1912, is unconstitutional.
5. That the court erred in holding in its decision that there is
no title for the prescription of this suit brought by the Insular
Government against the Monte de Piedad y Caja de
Ahorros for the reimbursement of the eighty thousand
dollars ($80,000) given to it by the late Spanish Government
of these Islands.
6. That the court erred in sentencing the Monte de Piedad y
Caja de Ahorros to reimburse the Philippine Government in
the sum of eighty thousand dollars ($80,000) gold coin, or the
equivalent thereof in the present legal tender currency in
circulation, with legal interest thereon from February 28th,
1912, and the costs of this suit.
In the royal order of June 29, 1879, the Governor-General of
the Philippine Islands was directed to inform the home
Government in what manner the indemnity might be paid to
which, by virtue of the resolutions of the relief board, the
persons who suffered damage by the earthquake might be
entitled, in order to perform the sacred obligation which the
Government of Spain had assumed toward the donors.
The next pertinent document in order is the defendant's
petition, dated February 1, 1883, addressed to the
Governor-General of the Philippine Islands, which reads:
Board of Directors of the Monte de Piedad of Manila
Presidencia.
Excellency: The Board of Directors of the Monte de Piedad y
Caja de Ahorros of Manila informs your Excellency, First: That
the funds which it has up to the present been able to dispose
of have been exhausted in loans on jewelry, and there only
remains the sum of one thousand and odd pesos, which will
be expended between to-day and day after tomorrow.
Second: That, to maintain the credit of the establishment,
which would be greatly injured were its operations
suspended, it is necessary to procure money. Third: That your
Excellency has proposed to His Majesty's Government to
apply to the funds of the Monte de Piedad a part of the funds
held in the treasury derived form the national subscription
for the relief of the distress caused by the earthquake of
1863. Fourth: That in the public treasury there is held at the
disposal of the central earthquake relief board over
$1090,000 which was deposited in the said treasury by order
of your general Government, it having been transferred
thereto from the Spanish-Filipino Bank where it had been
held. fifth: That in the straightened circumstances of the
moment, your Excellency can, to avert impending disaster to
the Monte de Piedad, order that, out of that sum of one
hundred thousand pesos held in the Treasury at the disposal
of the central relief board, there be transferred to the Monte
de Piedad the sum of $80,000, there to be held under the
same conditions as at present in the Treasury, to wit, at the
disposal of the Relief Board. Sixth: That should this transfer
not be approved for any reason, either because of the failure
of His Majesty's Government to approve the proposal made
by your Excellency relative to the application to the needs of
the Monte de Piedad of a pat of the subscription intended to
believe the distress caused by the earthquake of 1863, or for
any other reason, the board of directors of the Monte de
Piedad obligates itself to return any sums which it may have
received on account of the eighty thousand pesos, or the
whole thereof, should it have received the same, by securing
a loan from whichever bank or banks may lend it the money
at the cheapest rate upon the security of pawned jewelry. —
This is an urgent measure to save the Monte de Piedad in the
present crisis and the board of directors trusts to secure your
Excellency's entire cooperation and that of the other officials
who have take part in the transaction.
The Governor-General's resolution on the foregoing petition
is as follows:
GENERAL GOVERNMENT OF THE PHILIPPINES.
MANILA, February 1, 1883.
In view of the foregoing petition addressed to me by the
board of directors of the Monte de Piedad of this city, in
which it is stated that the funds which the said institution
counted upon are nearly all invested in loans on jewelry and
that the small account remaining will scarcely suffice to cover
the transactions of the next two days, for which reason it
entreats the general Government that, in pursuance of its
telegraphic advice to H. M. Government, the latter direct that
there be turned over to said Monte de Piedad $80,000 out of
the funds in the public treasury obtained from the national
subscription for the relief of the distress caused by the
earthquake of 1863, said board obligating itself to return this
sum should H. M. Government, for any reason, not approve
the said proposal, and for this purpose it will procure funds
by means of loans raised on pawned jewelry; it stated further
that if the aid so solicited is not furnished, it will be
compelled to suspend operations, which would seriously
injure the credit of so beneficient an institution; and in view
of the report upon the matter made by the Intendencia
General de Hacienda; and considering the fact that the public
treasury has on hand a much greater sum from the source
mentioned than that solicited; and considering that this
general Government has submitted for the determination of
H. M. Government that the balance which, after strictly
applying the proceeds obtained from the subscription
referred to, may remain as a surplus should be delivered to
the Monte de Piedad, either as a donation, or as a loan upon
the security of the credit of the institution, believing that in
so doing the wishes of the donors would be faithfully
interpreted inasmuch as those wishes were no other than to
relieve distress, an act of charity which is exercised in the
highest degree by the Monte de Piedad, for it liberates needy
person from the pernicious effects of usury; and
Considering that the lofty purposes that brought about the
creation of the pious institution referred to would be
frustrated, and that the great and laudable work of its
establishment, and that the great and laudable and valuable
if the aid it urgently seeks is not granted, since the
suspension of its operations would seriously and regrettably
damage the ever-growing credit of the Monte de Piedad; and
Considering that if such a thing would at any time cause deep
distress in the public mind, it might be said that at the
present juncture it would assume the nature of a disturbance
of public order because of the extreme poverty of the poorer
classes resulting from the late calamities, and because it is
the only institution which can mitigate the effects of such
poverty; and
Considering that no reasonable objection can be made to
granting the request herein contained, for the funds in
question are sufficiently secured in the unlikely event that H>
M. Government does not approve the recommendation
mentioned, this general Government, in the exercise of the
extraordinary powers conferred upon it and in conformity
with the report of the Intendencia de Hacienda, resolves as
follows:
First. Authority is hereby given to deliver to the Monte de
Piedad, out of the sum held in the public treasury of these
Islands obtained from the national subscription opened by
reason of the earthquakes of 1863, amounts up to the sum
$80,000, as its needs may require, in installments of $20,000.
Second. The board of directors of the Monte de Piedad is
solemnly bound to return, within eight days after demand,
the sums it may have so received, if H. M. Government does
not approve this resolution.
Third. The Intendencia General de Hacienda shall forthwith,
and in preference to all other work, proceed to prepare the
necessary papers so that with the least possible delay the
payment referred to may be made and the danger that
menaces the Monte de Piedad of having to suspend its
operations may be averted.
H. M. Government shall be advised hereof.lawphi1.net
(Signed) P. DE RIVERA.
By the royal order of December 3, 1892, the
Governor-General of the Philippine Islands was ordered to
"inform this ministerio what is the total sum available at the
present time, taking into consideration the sums delivered to
the Monte de Piedad pursuant to the decree issued by your
general Government on February 1, 1883," and after the
rights of the claimants, whose names were published in the
Official Gazette of Manila on April 7, 1870, and their heirs
had been established, as therein provided, as such persons
"have an unquestionable right to be paid the donations
assigned to them therein, your general Government shall
convoke them all within a reasonable period and shall pay
their shares to such as shall identify themselves, without
regard to their financial status," and finally "that when all the
proceedings and operations herein mentioned have been
concluded and the Government can consider itself free from
all kinds of claims on the part of those interested in the
distribution of the funds deposited in the vaults of the
Treasury, such action may be taken as the circumstances
shall require, after first consulting the relief board and your
general Government and taking account of what sums have
been delivered to the Monte de Piedad and those that were
expended in 1888 to relieve public calamities," and "in order
that all the points in connection with the proceedings had as
a result of the earthquake be clearly understood, it is
indispensable that the offices hereinbefore mentioned
comply with the provisions contained in paragraphs 2 and 3
of the royal order of June 25, 1879." On receipt of this
Finance order by the Governor-General, the Department of
Finance was called upon for a report in reference to the
$80,000 turned over to the defendant, and that
Department's report to the Governor-General dated June 28,
1893, reads:
Intendencia General de Hacienda de Filipinas (General
Treasury of the Philippines) — Excellency. — By Royal Order
No. 1044 of December 3, last, it is provided that the persons
who sustained losses by the earthquakes that occurred in
your capital in the year 1863 shall be paid the amounts
allotted to them out of the sums sent from Spain for this
purpose, with observance of the rules specified in the said
royal order, one of them being that before making the
payment to the interested parties the assets shall be reduced
to money. These assets, during the long period of time that
has elapsed since they were turned over to the Treasury of
the Philippine Islands, were used to cover the general needs
of the appropriation, a part besides being invested in the
relief of charitable institutions and another part to meet
pressing needs occasioned by public calamities. On January
30, last, your Excellency was please to order the fulfillment of
that sovereign mandate and referred the same to
this Intendencia for its information and the purposes desired
(that is, for compliance with its directions and, as aforesaid,
one of these being the liquidation, recovery, and deposit with
the Treasury of the sums paid out of that fund and which
were expended in a different way from that intended by the
donors) and this Intendencia believed the moment had
arrived to claim from the board of directors of the Monte de
Piedad y Caja de Ahorros the sum of 80,000 pesos which, by
decree of your general Government of the date of February 1,
1883, was loaned to it out of the said funds, the (Monte de
Piedad) obligating itself to return the same within the period
of eight days if H. M. Government did not approve the
delivery. On this Intendencia's demanding from the Monte de
Piedad the eighty thousand pesos, thus complying with the
provisions of the Royal Order, it was to be supposed that no
objection to its return would be made by the Monte de
Piedad for, when it received the loan, it formally engaged
itself to return it; and, besides, it was indisputable that the
moment to do so had arrived, inasmuch as H. M.
Government, in ordering that the assets of the earthquake
relief fund should he collected, makes express mention of the
80,000 pesos loaned to the Monte de Piedad, without doubt
considering as sufficient the period of ten years during which
it has been using this large sum which lawfully belongs to
their persons. This Intendencia also supposed that the Monte
de Piedad no longer needed the amount of that loan,
inasmuch as, far from investing it in beneficient transactions,
it had turned the whole amount into the voluntary deposit
funds bearing 5 per cent interests, the result of this operation
being that the debtor loaned to the creditor on interest what
the former had gratuitously received. But the Monte de
Piedad, instead of fulfilling the promise it made on receiving
the sum, after repeated demands refused to return the
money on the ground that only your Excellency, and not
the Intendencia (Treasury), is entitled to order the
reimbursement, taking no account of the fact that this
Intendencia was acting in the discharge of a sovereign
command, the fulfillment of which your Excellency was
pleased to order; and on the further ground that the sum of
80,000 pesos which it received from the fund intended for
the earthquake victims was not received as a loan, but as a
donation, this in the opinion of this Intendencia, erroneously
interpreting both the last royal order which directed the
apportionment of the amount of the subscription raised in
the year 1863 and the superior decree which granted the
loan, inasmuch as in this letter no donation is made to
the Monte de Piedad of the 80,000 pesos, but simply a loan;
besides, no donation whatever could be made of funds
derived from a private subscription raised for a specific
purpose, which funds are already distributed and the names
of the beneficiaries have been published in the Gaceta, there
being lacking only the mere material act of the delivery,
which has been unduly delayed. In view of the unexpected
reply made by the Monte de Piedad, and believing it useless
to insist further in the matter of the claim for the
aforementioned loan, or to argue in support thereof,
this Intendencia believes the intervention of your Excellency
necessary in this matter, if the royal Order No. 1044 of
December 3, last, is to be complied with, and for this purpose
I beg your Excellency kindly to order the Monte de Piedad to
reimburse within the period of eight days the 80,000 which it
owes, and that you give this Intendencia power to carry out
the provisions of the said royal order. I must call to the
attention of your Excellency that the said pious establishment,
during the last few days and after demand was made upon it,
has endorsed to the Spanish-Filipino Bank nearly the whole
of the sum which it had on deposit in the general deposit
funds.
The record in the case under consideration fails to disclose
any further definite action taken by either the Philippine
Government or the Spanish Government in regard to the
$80,000 turned over to the Monte de Piedad.
In the defendant's general ledger the following entries
appear: "Public Treasury: February 15, 1883, $20,000; March
12, 1883, $20,000; April 14, 1883, $20,000; June 2, 1883,
$20,000, total $80,000." The book entry for this total is as
follows: "To the public Treasury derived from the
subscription for the earthquake of 1863, $80,000 received
from general Treasury as a returnable loan, and without
interest." The account was carried in this manner until
January 1, 1899, when it was closed by transferring the
amount to an account called "Sagrada Mitra," which latter
account was a loan of $15,000 made to the defendant by the
Archbishop of Manila, without interest, thereby placing the
"Sagrada Mitra" account at $95,000 instead of $15,000. The
above-mentioned journal entry for January 1, 1899, reads:
"Sagrada Mitra and subscription, balance of these two
account which on this date are united in accordance with an
order of the Exmo. Sr. Presidente of the Council transmitted
verbally to the Presidente Gerente of these institutions,
$95,000."
On March 16, 1902, the Philippine government called upon
the defendant for information concerning the status of the
$80,000 and received the following reply:
MANILA, March 31, 1902.
To the Attorney-General of the Department of Justice of the
Philippine Islands.
SIR: In reply to your courteous letter of the 16th inst., in
which you request information from this office as to when
and for what purpose the Spanish Government delivered to
the Monte de Piedad eighty thousand pesos obtained from
the subscription opened in connection with the earthquake
of 1863, as well as any other information that might be useful
for the report which your office is called upon to furnish, I
must state to your department that the books kept in these
Pious Institutions, and which have been consulted for the
purpose, show that on the 15th of February, 1883, they
received as a reimbursable loan and without interest, twenty
thousand pesos, which they deposited with their own funds.
On the same account and on each of the dates of March 12,
April 14 and June 2 of the said year, 1883, they also received
and turned into their funds a like sum of twenty thousand
pesos, making a total of eighty thousand pesos. — (Signed)
Emilio Moreta.
I hereby certify that the foregoing is a literal copy of that
found in the letter book No. 2 of those Pious Institutions.
Manila, November 19, 1913
(Sgd.) EMILIO LAZCANOTEGUI,
Secretary
(Sgd.) O. K. EMILIO MORETA,
Managing Director.
The foregoing documentary evidence shows the nature of
the transactions which took place between the Government
of Spain and the Philippine Government on the one side and
the Monte de Piedad on the other, concerning the $80,000.
The Monte de Piedad, after setting forth in its petition to the
Governor-General its financial condition and its absolute
necessity for more working capital, asked that out of the sum
of $100,000 held in the Treasury of the Philippine Islands, at
the disposal of the central relief board, there be transferred
to it the sum of $80,000 to be held under the same
conditions, to wit, "at the disposal of the relief board." The
Monte de Piedad agreed that if the transfer of these funds
should not be approved by the Government of Spain, the
same would be returned forthwith. It did not ask that the
$80,000 be given to it as a donation. The Governor-General,
after reciting the substance of the petition, stated that "this
general Government has submitted for the determination of
H. M. Government that the balance which, after strictly
applying the proceeds obtained from the subscription
referred to, may remain as a surplus, should be delivered to
the Monte de Piedad, either as a donation, or as a loan upon
the security of the credit of the institution," and "considering
that no reasonable objection can be made to granting the
request herein contained," directed the transfer of the
$80,000 to be made with the understanding that "the Board
of Directors of the Monte de Piedad is solemnly bound to
return, within eight days after demand, the sums it may have
so received, if H. M. Government does not approve this
resolution." It will be noted that the first and only time the
word "donation" was used in connection with the $80,000
appears in this resolution of the Governor-General. It may be
inferred from the royal orders that the Madrid Government
did tacitly approve of the transfer of the $80,000 to the
Monte de Piedad as a loan without interest, but that
Government certainly did not approve such transfer as a
donation for the reason that the Governor-General was
directed by the royal order of December 3, 1892, to inform
the Madrid Government of the total available sum of the
earthquake fund, "taking into consideration the sums
delivered to the Monte de Piedad pursuant to the decree
issued by your general Government on February 1, 1883."
This language, nothing else appearing, might admit of the
interpretation that the Madrid Government did not intend
that the Governor-General of the Philippine Islands should
include the $80,000 in the total available sum, but when
considered in connection with the report of the Department
of Finance there can be no doubt that it was so intended.
That report refers expressly to the royal order of December
3d, and sets forth in detail the action taken in order to secure
the return of the $80,000. The Department of Finance, acting
under the orders of the Governor-General, understood that
the $80,000 was transferred to the Monte de Piedad well
knew that it received this sum as a loan interest." The
amount was thus carried in its books until January, 1899,
when it was transferred to the account of the "Sagrada
Mitra" and was thereafter known as the "Sagrada Mitra and
subscription account." Furthermore, the Monte de
Piedad recognized and considered as late as March 31, 1902,
that it received the $80,000 "as a returnable loan, and
without interest." Therefore, there cannot be the slightest
doubt the fact that the Monte de Piedad received the
$80,000 as a mere loan or deposit and not as a donation.
Consequently, the first alleged error is entirely without
foundation.
Counsel for the defendant, in support of their third
assignment of error, say in their principal brief that:
The Spanish nation was professedly Roman Catholic and its
King enjoyed the distinction of being deputy ex officio of the
Holy See and Apostolic Vicar-General of the Indies, and as
such it was his duty to protect all pious works and charitable
institutions in his kingdoms, especially those of the Indies;
among the latter was the Monte de Piedad of the Philippines,
of which said King and his deputy the Governor-General of
the Philippines, as royal vice-patron, were, in a special and
peculiar manner, the protectors; the latter, as a result of the
cession of the Philippine Islands, Implicitly renounced this
high office and tacitly returned it to the Holy See, now
represented by the Archbishop of Manila; the national
subscription in question was a kind of foundation or pious
work, for a charitable purpose in these Islands; and the entire
subscription not being needed for its original purpose, the
royal vice-patron, with the consent of the King, gave the
surplus thereof to an analogous purpose; the fulfillment of all
these things involved, in the majority, if not in all cases,
faithful compliance with the duty imposed upon him by the
Holy See, when it conferred upon him the royal patronage of
the Indies, a thing that touched him very closely in his
conscience and religion; the cessionary Government though
Christian, was not Roman Catholic and prided itself on its
policy of non-interference in religious matters, and
inveterately maintained a complete separation between the
ecclesiastical and civil powers.
In view of these circumstances it must be quite clear that,
even without the express provisions of the Treaty of Paris,
which apparently expressly exclude such an idea, it did not
befit the honor of either of the contracting parties to
subrogate to the American Government in lieu of the Spanish
Government anything respecting the disposition of the funds
delivered by the latter to the Monte de Piedad. The same
reasons that induced the Spanish Government to take over
such things would result in great inconvenience to the
American Government in attempting to do so. The question
was such a delicate one, for the reason that it affected the
conscience, deeply religious, of the King of Spain, that it
cannot be believed that it was ever his intention to confide
the exercise thereof to a Government like the American. (U.
S. vs. Arredondo, 6 Pet. [U. S.], 711.)
It is thus seen that the American Government did not
subrogate the Spanish Government or rather, the King of
Spain, in this regard; and as the condition annexed to the
donation was lawful and possible of fulfillment at the time
the contract was made, but became impossible of fulfillment
by the cession made by the Spanish Government in these
Islands, compliance therewith is excused and the contract
has been cleared thereof.
The contention of counsel, as thus stated, in untenable for
two reason, (1) because such contention is based upon the
erroneous theory that the sum in question was a donation to
the Monte de Piedad and not a loan, and (2) because the
charity founded by the donations for the earthquake
sufferers is not and never was intended to be an
ecclesiastical pious work. The first proposition has already
been decided adversely to the defendant's contention. As to
the second, the record shows clearly that the fund was given
by the donors for a specific and definite purpose — the relief
of the earthquake sufferers — and for no other purpose. The
money was turned over to the Spanish Government to be
devoted to that purpose. The Spanish Government remitted
the money to the Philippine Government to be distributed
among the suffers. All officials, including the King of Spain
and the Governor-General of the Philippine Islands, who took
part in the disposal of the fund, acted in their purely civil,
official capacity, and the fact that they might have belonged
to a certain church had nothing to do with their acts in this
matter. The church, as such, had nothing to do with the fund
in any way whatever until the $80,000 reached the coffers of
the Monte de Piedad (an institution under the control of the
church) as a loan or deposit. If the charity in question had
been founded as an ecclesiastical pious work, the King of
Spain and the Governor-General, in their capacities as
vicar-general of the Indies and as royal vice-patron,
respectively, would have disposed of the fund as such and
not in their civil capacities, and such functions could not have
been transferred to the present Philippine Government,
because the right to so act would have arisen out of the
special agreement between the Government of Spain and the
Holy See, based on the union of the church and state which
was completely separated with the change of sovereignty.
And in their supplemental brief counsel say:
By the conceded facts the money in question is part of
a charitable subscription. The donors were persons in Spain,
the trustee was the Spanish Government, the donees,
the cestuis que trustent, were certain persons in the
Philippine Islands. The whole matter is one of trusteeship.
This is undisputed and indisputable. It follows that the
Spanish Government at no time was the owner of the fund.
Not being the owner of the fund it could not transfer the
ownership. Whether or not it could transfer its trusteeship it
certainly never has expressly done so and the general terms
of property transfer in the Treaty of Paris are wholly
insufficient for such a purpose even could Spain have
transferred its trusteeship without the consent of the donors
and even could the United States, as a Government, have
accepted such a trust under any power granted to it by the
thirteen original States in the Constitution, which is more
than doubtful. It follows further that this Government is not a
proper party to the action. The only persons who could claim
to be damaged by this payment to the Monte, if it was
unlawful, are the donors or the cestuis que trustent, and this
Government is neither.
If "the whole matter is one of trusteeship," and it being true
that the Spanish Government could not, as counsel say,
transfer the ownership of the fund to the Monte de Piedad,
the question arises, who may sue to recover this loan? It
needs no argument to show that the Spanish or Philippine
Government, as trustee, could maintain an action for this
purpose had there been no change of sovereignty and if the
right of action has not prescribed. But those governments
were something more than mere common law trustees of
the fund. In order to determine their exact status with
reference to this fund, it is necessary to examine the law in
force at the time there transactions took place, which are the
law of June 20, 1894, the royal decree of April 27. 1875, and
the instructions promulgated on the latter date. These legal
provisions were applicable to the Philippine Islands
(Benedicto vs. De la Rama, 3 Phil. Rep., 34)
The funds collected as a result of the national subscription
opened in Spain by royal order of the Spanish Government
and which were remitted to the Philippine Government to be
distributed among the earthquake sufferers by the Central
Relief Board constituted, under article 1 of the law of June 20,
1894, and article 2 of the instructions of April 27, 1875, a
special charity of a temporary nature as distinguished from a
permanent public charitable institution. As the Spanish
Government initiated the creation of the fund and as the
donors turned their contributions over to that Government,
it became the duty of the latter, under article 7 of the
instructions, to exercise supervision and control over the
moneys thus collected to the end that the will of the donors
should be carried out. The relief board had no power
whatever to dispose of the funds confided to its charge for
other purposes than to distribute them among the sufferers,
because paragraph 3 of article 11 of the instructions
conferred the power upon the secretary of the interior of
Spain, and no other, to dispose of the surplus funds, should
there be any, by assigning them to some other charitable
purpose or institution. The secretary could not dispose of any
of the funds in this manner so long as they were necessary
for the specific purpose for which they were contributed. The
secretary had the power, under the law above mentioned to
appoint and totally or partially change the personnel of the
relief board and to authorize the board to defend the rights
of the charity in the courts. The authority of the board
consisted only in carrying out the will of the donors as
directed by the Government whose duty it was to watch over
the acts of the board and to see that the funds were applied
to the purposes for which they were contributed .The
secretary of the interior, as the representative of His
Majesty's Government, exercised these powers and duties
through the Governor-General of the Philippine Islands. The
Governments of Spain and of the Philippine Islands in
complying with their duties conferred upon them by law,
acted in their governmental capacities in attempting to carry
out the intention of the contributors. It will this be seen that
those governments were something more, as we have said,
than mere trustees of the fund.
It is further contended that the obligation on the part of
the Monte de Piedad to return the $80,000 to the
Government, even considering it a loan, was wiped out on
the change of sovereignty, or inn other words, the present
Philippine Government cannot maintain this action for that
reason. This contention, if true, "must result from settled
principles of rigid law," as it cannot rest upon any title to the
fund in the Monte de Piedad acquired prior to such change.
While the obligation to return the $80,000 to the Spanish
Government was still pending, war between the United
States and Spain ensued. Under the Treaty of Paris of
December 10, 1898, the Archipelago, known as the Philippine
Islands, was ceded to the United States, the latter agreeing to
pay Spain the sum of $20,000,000. Under the first paragraph
of the eighth article, Spain relinquished to the United States
"all buildings, wharves, barracks, forts, structures, public
highways, and other immovable property which, in
conformity with law, belonged to the public domain, and as
such belonged to the crown of Spain." As the $80,000 were
not included therein, it is said that the right to recover this
amount did not, therefore, pass to the present sovereign.
This, in our opinion, does not follow as a necessary
consequence, as the right to recover does not rest upon the
proposition that the $80,000 must be "other immovable
property" mentioned in article 8 of the treaty, but upon
contractual obligations incurred before the Philippine Islands
were ceded to the United States. We will not inquire what
effect his cession had upon the law of June 20, 1849, the
royal decree of April 27, 1875, and the instructions
promulgated on the latter date. In Vilas vs.Manila (220 U. S.,
345), the court said:
That there is a total abrogation of the former political
relations of the inhabitants of the ceded region is obvious.
That all laws theretofore in force which are in conflict with
the political character, constitution, or institutions of the
substituted sovereign, lose their force, is also plain. (Alvarez y
Sanchez vs. United States, 216 U. S., 167.) But it is equally
settled in the same public law that the great body of
municipal law which regulates private and domestic rights
continues in force until abrogated or changed by the new
ruler.
If the above-mentioned legal provisions are in conflict with
the political character, constitution or institutions of the new
sovereign, they became inoperative or lost their force upon
the cession of the Philippine Islands to the United States, but
if they are among "that great body of municipal law which
regulates private and domestic rights," they continued in
force and are still in force unless they have been repealed by
the present Government. That they fall within the latter class
is clear from their very nature and character. They are laws
which are not political in any sense of the word. They
conferred upon the Spanish Government the right and duty
to supervise, regulate, and to some extent control charities
and charitable institutions. The present sovereign, in
exempting "provident institutions, savings banks, etc.," all of
which are in the nature of charitable institutions, from
taxation, placed such institutions, in so far as the investment
in securities are concerned, under the general supervision of
the Insular Treasurer (paragraph 4 of section 111 of Act No.
1189; see also Act No. 701).
Furthermore, upon the cession of the Philippine Islands the
prerogatives of he crown of Spain devolved upon he United
States. In Magill vs. Brown (16 Fed. Cas., 408), quoted with
approval in Mormon Charch vs. United States (136 U. S.,1, 57),
the court said:
The Revolution devolved on the State all the transcendent
power of Parliament, and the prerogative of the crown, and
gave their Acts the same force and effect.
In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean,
delivering the opinion of the court in a charity case, said:
When this country achieved its independence, the
prerogatives of the crown devolved upon the people of the
States. And this power still remains with them except so fact
as they have delegated a portion of it to the Federal
Government. The sovereign will is made known to us by
legislative enactment. The State as a sovereign, is the parens
patriae.
Chancelor Kent says:
In this country, the legislature or government of the State,
as parens patriae, has the right to enforce all charities of
public nature, by virtue of its general superintending
authority over the public interests, where no other person is
entrusted with it. (4 Kent Com., 508, note.)
The Supreme Court of the United States in Mormon
Church vs. United States, supra, after approving also the last
quotations, said:
This prerogative of parens patriae is inherent in the supreme
power of every State, whether that power is lodged in a royal
person or in the legislature, and has no affinity to those
arbitrary powers which are sometimes exerted by
irresponsible monarchs to the great detriment of the people
and the destruction of their liberties. On the contrary, it is a
most beneficient functions, and often necessary to be
exercised in the interest of humanity, and for the prevention
of injury to those who cannot protect themselves.
The court in the same case, after quoting from
Sohier vs. Mass. General Hospital (3 Cush., 483, 497), wherein
the latter court held that it is deemed indispensible that
there should be a power in the legislature to authorize the
same of the estates of in facts, idiots, insane persons, and
persons not known, or not in being, who cannot act for
themselves, said:
These remarks in reference to in facts, insane persons and
person not known, or not in being, apply to the beneficiaries
of charities, who are often in capable of vindicating their
rights, and justly look for protection to the sovereign
authority, acting as parens patriae. They show that this
beneficient functions has not ceased t exist under the change
of government from a monarchy to a republic; but that it
now resides in the legislative department, ready to be called
into exercise whenever required for the purposes of justice
and right, and is a clearly capable of being exercised in cases
of charities as in any other cases whatever.
In People vs. Cogswell (113 Cal. 129, 130), it was urged that
the plaintiff was not the real party in interest; that the
Attorney-General had no power to institute the action; and
that there must be an allegation and proof of a distinct right
of the people as a whole, as distinguished from the rights of
individuals, before an action could be brought by the
Attorney-General in the name of the people. The court, in
overruling these contentions, held that it was not only the
right but the duty of the Attorney-General to prosecute the
action, which related to charities, and approved the following
quotation from Attorney-General vs. Compton (1 Younge & C.
C., 417):
Where property affected by a trust for public purposes is in
the hands of those who hold it devoted to that trust, it is the
privilege of the public that the crown should be entitled to
intervene by its officers for the purpose of asserting, on
behalf on the public generally, the public interest and the
public right, which, probably, no individual could be found
effectually to assert, even if the interest were such as to
allow it. (2 Knet's Commentaries, 10th ed., 359; Lewin on
Trusts, sec. 732.)
It is further urged, as above indicated, that "the only persons
who could claim to be damaged by this payment to the
Monte, if it was unlawful, are the donors or the cestuis que
trustent, and this Government is neither. Consequently, the
plaintiff is not the proper party to bring the action." The
earthquake fund was the result or the accumulation of a
great number of small contributions. The names of the
contributors do not appear in the record. Their whereabouts
are unknown. They parted with the title to their respective
contributions. The beneficiaries, consisting of the original
sufferers and their heirs, could have been ascertained. They
are quite numerous also. And no doubt a large number of the
original sufferers have died, leaving various heirs. It would be
impracticable for them to institute an action or actions either
individually or collectively to recover the $80,000. The only
course that can be satisfactorily pursued is for the
Government to again assume control of the fund and devote
it to the object for which it was originally destined.
The impracticability of pursuing a different course, however,
is not the true ground upon which the right of the
Government to maintain the action rests. The true ground is
that the money being given to a charity became, in a
measure, public property, only applicable, it is true, to the
specific purposes to which it was intended to be devoted, but
within those limits consecrated to the public use, and
became part of the public resources for promoting the
happiness and welfare of the Philippine Government.
(Mormon Church vs. U. S., supra.) To deny the Government's
right to maintain this action would be contrary to sound
public policy, as tending to discourage the prompt exercise of
similar acts of humanity and Christian benevolence in like
instances in the future.
As to the question raised in the fourth assignment of error
relating to the constitutionality of Act No. 2109, little need be
said for the reason that we have just held that the present
Philippine Government is the proper party to the action. The
Act is only a manifestation on the part of the Philippine
Government to exercise the power or right which it
undoubtedly had. The Act is not, as contended by counsel, in
conflict with the fifth section of the Act of Congress of July 1,
1902, because it does not take property without due process
of law. In fact, the defendant is not the owner of the $80,000,
but holds it as a loan subject to the disposal of the central
relief board. Therefor, there can be nothing in the Act which
transcends the power of the Philippine Legislature.
In Vilas vs. Manila, supra, the plaintiff was a creditor of the
city of Manila as it existed before the cession of the
Philippine Islands to the United States by the Treaty of Paris
of December 10, 1898. The action was brought upon the
theory that the city, under its present charter from the
Government of the Philippine Islands, was the same juristic
person, and liable upon the obligations of the old city. This
court held that the present municipality is a totally different
corporate entity and in no way liable for the debts of the
Spanish municipality. The Supreme Court of the United States,
in reversing this judgment and in holding the city liable for
the old debt, said:
The juristic identity of the corporation has been in no wise
affected, and, in law, the present city is, in every legal sense,
the successor of the old. As such it is entitled to the property
and property rights of the predecessor corporation, and is, in
law, subject to all of its liabilities.
In support of the fifth assignment of error counsel for the
defendant argue that as the Monte de Piedad declined to
return the $80,000 when ordered to do so by the
Department of Finance in June, 1893, the plaintiff's right of
action had prescribed at the time this suit was instituted on
May 3, 1912, citing and relying upon article 1961, 1964 and
1969 of the Civil Code. While on the other hand, the
Attorney-General contends that the right of action had not
prescribed (a) because the defense of prescription cannot be
set up against the Philippine Government, (b) because the
right of action to recover a deposit or trust funds does not
prescribe, and (c) even if the defense of prescription could be
interposed against the Government and if the action had, in
fact, prescribed, the same was revived by Act No. 2109.
The material facts relating to this question are these:
The Monte de Piedad received the $80,000 in 1883 "to be
held under the same conditions as at present in the treasury,
to wit, at the disposal of the relief board." In compliance with
the provisions of the royal order of December 3, 1892, the
Department of Finance called upon the Monte de Piedadin
June, 1893, to return the $80,000. The Monte declined to
comply with this order upon the ground that only the
Governor-General of the Philippine Islands and not the
Department of Finance had the right to order the
reimbursement. The amount was carried on the books of the
Monte as a returnable loan until January 1, 1899, when it was
transferred to the account of the "Sagrada Mitra." On March
31, 1902, the Monte, through its legal representative, stated
in writing that the amount in question was received as a
reimbursable loan, without interest. Act No. 2109 became
effective January 30, 1912, and the action was instituted on
May 3rd of that year.
Counsel for the defendant treat the question of prescription
as if the action was one between individuals or corporations
wherein the plaintiff is seeking to recover an ordinary loan.
Upon this theory June, 1893, cannot be taken as the date
when the statute of limitations began to run, for the reason
that the defendant acknowledged in writing on March 31,
1902, that the $80,000 were received as a loan, thereby in
effect admitting that it still owed the amount. (Section 50,
Code of Civil Procedure.) But if counsels' theory is the correct
one the action may have prescribed on May 3, 1912, because
more than ten full years had elapsed after March 31, 1902.
(Sections 38 and 43, Code of Civil Procedure.)
Is the Philippine Government bound by the statute of
limitations? The Supreme Court of the United States in U.
S. vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U.
S., 120, 125), said:
It is settled beyond doubt or controversy — upon the
foundation of the great principle of public policy, applicable
to all governments alike, which forbids that the public
interests should be prejudiced by the negligence of the
officers or agents to whose care they are confided — that the
United States, asserting rights vested in it as a sovereign
government, is not bound by any statute of limitations,
unless Congress has clearly manifested its intention that it
should be so bound. (Lindsey vs. Miller, 6 Pet. 666; U.
S. vs. Knight, 14 Pet., 301; Gibson vs. Chouteau, 13 Wall., 92;
U. S. vs. Thompson, 98 U. S., 486; Fink vs. O'Neil, 106 U. S.,
272, 281.)
In Gibson vs. Choteau, supra, the court said:
It is a matter of common knowledge that statutes of
limitation do not run against the State. That no laches can be
imputed to the King, and that no time can bar his rights, was
the maxim of the common laws, and was founded on the
principle of public policy, that as he was occupied with the
cares of government he ought not to suffer from the
negligence of his officer and servants. The principle is
applicable to all governments, which must necessarily act
through numerous agents, and is essential to a preservation
of the interests and property of the public. It is upon this
principle that in this country the statutes of a State
prescribing periods within which rights must be prosecuted
are not held to embrace the State itself, unless it is expressly
designated or the mischiefs to be remedied are of such a
nature that it must necessarily be included. As legislation of a
State can only apply to persons and thing over which the
State has jurisdiction, the United States are also necessarily
excluded from the operation of such statutes.
In 25 Cyc., 1006, the rule, supported by numerous authorities,
is stated as follows:
In the absence of express statutory provision to the contrary,
statute of limitations do not as a general rule run against the
sovereign or government, whether state or federal. But the
rule is otherwise where the mischiefs to be remedied are of
such a nature that the state must necessarily be included,
where the state goes into business in concert or in
competition with her citizens, or where a party seeks to
enforces his private rights by suit in the name of the state or
government, so that the latter is only a nominal party.
In the instant case the Philippine Government is not a mere
nominal party because it, in bringing and prosecuting this
action, is exercising its sovereign functions or powers and is
seeking to carry out a trust developed upon it when the
Philippine Islands were ceded to the United States. The
United States having in 1852, purchased as trustee for the
Chickasaw Indians under treaty with that tribe, certain bonds
of the State of Tennessee, the right of action of the
Government on the coupons of such bonds could not be
barred by the statute of limitations of Tennessee, either
while it held them in trust for the Indians, or since it became
the owner of such coupons. (U. S. vs. Nashville, etc., R.
Co., supra.) So where lands are held in trust by the state and
the beneficiaries have no right to sue, a statute does not run
against the State's right of action for trespass on the trust
lands. (Greene Tp. vs. Campbell, 16 Ohio St., 11; see also
Atty.-Gen. vs. Midland R. Co., 3 Ont., 511 [following
Reg. vs. Williams, 39 U. C. Q. B., 397].)
These principles being based "upon the foundation of the
great principle of public policy" are, in the very nature of
things, applicable to the Philippine Government.
Counsel in their argument in support of the sixth and last
assignments of error do not question the amount of the
judgment nor do they question the correctness of the
judgment in so far as it allows interest, and directs its
payment in gold coin or in the equivalent in Philippine
currency.
For the foregoing reasons the judgment appealed from is
affirmed, with costs against the appellant. So ordered.
Torres, Johnson and Araullo, JJ., concur.
Moreland, J., did not sign.
G.R. No. L-5 September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of
First Instance of Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the
respondent judge of the lower court be ordered to continue
the proceedings in civil case No. 3012 of said court, which
were initiated under the regime of the so-called Republic of
the Philippines established during the Japanese military
occupation of these Islands.
The respondent judge refused to take cognizance of and
continue the proceedings in said case on the ground that the
proclamation issued on October 23, 1944, by General
Douglas MacArthur had the effect of invalidating and
nullifying all judicial proceedings and judgements of the court
of the Philippines under the Philippine Executive Commission
and the Republic of the Philippines established during the
Japanese military occupation, and that, furthermore, the
lower courts have no jurisdiction to take cognizance of and
continue judicial proceedings pending in the courts of the
defunct Republic of the Philippines in the absence of an
enabling law granting such authority. And the same
respondent, in his answer and memorandum filed in this
Court, contends that the government established in the
Philippines during the Japanese occupation were no de
facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied
the City of Manila, and on the next day their Commander in
Chief proclaimed "the Military Administration under law over
the districts occupied by the Army." In said proclamation, it
was also provided that "so far as the Military Administration
permits, all the laws now in force in the Commonwealth, as
well as executive and judicial institutions, shall continue to be
effective for the time being as in the past," and "all public
officials shall remain in their present posts and carry on
faithfully their duties as before."
A civil government or central administration organization
under the name of "Philippine Executive Commission was
organized by Order No. 1 issued on January 23, 1942, by the
Commander in Chief of the Japanese Forces in the Philippines,
and Jorge B. Vargas, who was appointed Chairman thereof,
was instructed to proceed to the immediate coordination of
the existing central administrative organs and judicial courts,
based upon what had existed therefore, with approval of the
said Commander in Chief, who was to exercise jurisdiction
over judicial courts.
The Chairman of the Executive Commission, as head of the
central administrative organization, issued Executive Orders
Nos. 1 and 4, dated January 30 and February 5, 1942,
respectively, in which the Supreme Court, Court of Appeals,
Courts of First Instance, and the justices of the peace and
municipal courts under the Commonwealth were continued
with the same jurisdiction, in conformity with the instructions
given to the said Chairman of the Executive Commission by
the Commander in Chief of Japanese Forces in the Philippines
in the latter's Order No. 3 of February 20, 1942, concerning
basic principles to be observed by the Philippine Executive
Commission in exercising legislative, executive and judicial
powers. Section 1 of said Order provided that "activities of
the administration organs and judicial courts in the
Philippines shall be based upon the existing statutes, orders,
ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the
Philippines was inaugurated, but no substantial change was
effected thereby in the organization and jurisdiction of the
different courts that functioned during the Philippine
Executive Commission, and in the laws they administered and
enforced.
On October 23, 1944, a few days after the historic landing in
Leyte, General Douglas MacArthur issued a proclamation to
the People of the Philippines which declared:
1. That the Government of the Commonwealth of the
Philippines is, subject to the supreme authority of the
Government of the United States, the sole and only
government having legal and valid jurisdiction over the
people in areas of the Philippines free of enemy occupation
and control;
2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations
promulgated pursuant thereto are in full force and effect and
legally binding upon the people in areas of the Philippines
free of enemy occupation and control; and
3. That all laws, regulations and processes of any other
government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in
areas of the Philippines free of enemy occupation and
control.
On February 3, 1945, the City of Manila was partially
liberated and on February 27, 1945, General MacArthur, on
behalf of the Government of the United States, solemnly
declared "the full powers and responsibilities under the
Constitution restored to the Commonwealth whose seat is
here established as provided by law."
In the light of these facts and events of contemporary history,
the principal questions to be resolved in the present case
may be reduced to the following:(1) Whether the judicial acts
and proceedings of the court existing in the Philippines under
the Philippine Executive Commission and the Republic of the
Philippines were good and valid and remained so even after
the liberation or reoccupation of the Philippines by the
United States and Filipino forces; (2)Whether the
proclamation issued on October 23, 1944, by General
Douglas MacArthur, Commander in Chief of the United States
Army, in which he declared "that all laws, regulations and
processes of any of the government in the Philippines than
that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy
occupation and control," has invalidated all judgements and
judicial acts and proceedings of the said courts; and (3) If the
said judicial acts and proceedings have not been invalidated
by said proclamation, whether the present courts of the
Commonwealth, which were the same court existing prior to,
and continued during, the Japanese military occupation of
the Philippines, may continue those proceedings pending in
said courts at the time the Philippines were reoccupied and
liberated by the United States and Filipino forces, and the
Commonwealth of the Philippines were reestablished in the
Islands.
We shall now proceed to consider the first question, that is,
whether or not under the rules of international law the
judicial acts and proceedings of the courts established in the
Philippines under the Philippine Executive Commission and
the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or
reoccupation of the Philippines by the United States and
Filipino forces.
1. It is a legal truism in political and international law that all
acts and proceedings of the legislative, executive, and judicial
departments of a de facto government are good and valid.
The question to be determined is whether or not the
governments established in these Islands under the names of
the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime
were de facto governments. If they were, the judicial acts and
proceedings of those governments remain good and valid
even after the liberation or reoccupation of the Philippines by
the American and Filipino forces.
There are several kinds of de facto governments. The first, or
government de facto in a proper legal sense, is that
government that gets possession and control of, or usurps,
by force or by the voice of the majority, the rightful legal
governments and maintains itself against the will of the latter,
such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell as
Protector. The second is that which is established and
maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is
denominated a government of paramount force, as the cases
of Castine, in Maine, which was reduced to British possession
in the war of 1812, and Tampico, Mexico, occupied during
the war with Mexico, by the troops of the United States. And
the third is that established as an independent government
by the inhabitants of a country who rise in insurrection
against the parent state of such as the government of the
Southern Confederacy in revolt not concerned in the present
case with the first kind, but only with the second and third
kinds of de facto governments.
Speaking of government "de facto" of the second kind, the
Supreme Court of the United States, in the case of
Thorington vs. Smith (8 Wall., 1), said: "But there is another
description of government, called also by publicists a
government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force. Its
distinguishing characteristics are (1), that its existence is
maintained by active military power with the territories, and
against the rightful authority of an established and lawful
government; and (2), that while it exists it necessarily be
obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though
not warranted by the laws of the rightful government. Actual
governments of this sort are established over districts
differing greatly in extent and conditions. They are usually
administered directly by military authority, but they may be
administered, also, civil authority, supported more or less
directly by military force. . . . One example of this sort of
government is found in the case of Castine, in Mine, reduced
to British possession in the war of 1812 . . . U. S. vs. Rice (4
Wheaton, 253). A like example is found in the case of
Tampico, occupied during the war with Mexico, by the troops
of the United States . . . Fleming vs. Page (9 Howard, 614).
These were cases of temporary possessions of territory by
lawfull and regular governments at war with the country of
which the territory so possessed was part."
The powers and duties of de facto governments of this
description are regulated in Section III of the Hague
Conventions of 1907, which is a revision of the provisions of
the Hague Conventions of 1899 on the same subject of said
Section III provides "the authority of the legislative power
having actually passed into the hands of the occupant, the
latter shall take steps in his power to reestablish and insure,
as far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the
country."
According to the precepts of the Hague Conventions, as the
belligerent occupant has the right and is burdened with the
duty to insure public order and safety during his military
occupation, he possesses all the powers of a de
factogovernment, and he can suspended the old laws and
promulgate new ones and make such changes in the old as
he may see fit, but he is enjoined to respect, unless
absolutely prevented by the circumstances prevailing in the
occupied territory, the municipal laws in force in the country,
that is, those laws which enforce public order and regulate
social and commercial life of the country. On the other hand,
laws of a political nature or affecting political relations, such
as, among others, the right of assembly, the right to bear
arms, the freedom of the press, and the right to travel freely
in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local
and civil administration of justice is suspended as a matter of
course as soon as a country is militarily occupied, it is not
usual for the invader to take the whole administration into
his own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and judges and
other judicial officers are kept in their posts if they accept the
authority of the belligerent occupant or are required to
continue in their positions under the supervision of the
military or civil authorities appointed, by the Commander in
Chief of the occupant. These principles and practice have the
sanction of all publicists who have considered the subject,
and have been asserted by the Supreme Court and applied by
the President of the United States.
The doctrine upon this subject is thus summed up by Halleck,
in his work on International Law (Vol. 2, p. 444): "The right of
one belligerent to occupy and govern the territory of the
enemy while in its military possession, is one of the incidents
of war, and flows directly from the right to conquer. We,
therefore, do not look to the Constitution or political
institutions of the conqueror, for authority to establish a
government for the territory of the enemy in his possession,
during its military occupation, nor for the rules by which the
powers of such government are regulated and limited. Such
authority and such rules are derived directly from the laws
war, as established by the usage of the of the world, and
confirmed by the writings of publicists and decisions of courts
— in fine, from the law of nations. . . . The municipal laws of a
conquered territory, or the laws which regulate private rights,
continue in force during military occupation, excepts so far as
they are suspended or changed by the acts of conqueror. . . .
He, nevertheless, has all the powers of a de
facto government, and can at his pleasure either change the
existing laws or make new ones."
And applying the principles for the exercise of military
authority in an occupied territory, which were later
embodied in the said Hague Conventions, President McKinley,
in his executive order to the Secretary of War of May 19,1898,
relating to the occupation of the Philippines by United States
forces, said in part: "Though the powers of the military
occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the
municipal laws of the conquered territory, such as affect
private rights of person and property and provide for the
punishment of crime, are considered as continuing in force,
so far as they are compatible with the new order of things,
until they are suspended or superseded by the occupying
belligerent; and in practice they are not usually abrogated,
but are allowed to remain in force and to be administered by
the ordinary tribunals, substantially as they were before the
occupation. This enlightened practice is, so far as possible, to
be adhered to on the present occasion. The judges and the
other officials connected with the administration of justice
may, if they accept the authority of the United States,
continue to administer the ordinary law of the land as
between man and man under the supervision of the
American Commander in Chief." (Richardson's Messages and
Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme
Court of the United States, in the same case of
Thorington vs. Smith, supra, recognized the government set
up by the Confederate States as a de factogovernment. In
that case, it was held that "the central government
established for the insurgent States differed from the
temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts
of regular war; but it was not, on the account, less actual or
less supreme. And we think that it must be classed among
the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the
Supreme Court of the United States, discussing the validity of
the acts of the Confederate States, said: "The same general
form of government, the same general laws for the
administration of justice and protection of private rights,
which had existed in the States prior to the rebellion,
remained during its continuance and afterwards. As far as the
Acts of the States do not impair or tend to impair the
supremacy of the national authority, or the just rights of
citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart
(17 Wall., 570; 21 Law. ed., 657): "The existence of a state of
insurrection and war did not loosen the bonds of society, or
do away with civil government or the regular administration
of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts
enforced, marriages celebrated, estates settled, and the
transfer and descent of property regulated, precisely as in
the time of peace. No one, that we are aware of, seriously
questions the validity of judicial or legislative Acts in the
insurrectionary States touching these and kindered subjects,
where they were not hostile in their purpose or mode of
enforcement to the authority of the National Government,
and did not impair the rights of citizens under the
Constitution'. The same doctrine has been asserted in
numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S.,
388, 400), held: "That what occured or was done in respect of
such matters under the authority of the laws of these local de
facto governments should not be disregarded or held to be
invalid merely because those governments were organized in
hostility to the Union established by the national Constitution;
this, because the existence of war between the United States
and the Confederate States did not relieve those who are
within the insurrectionary lines from the necessity of civil
obedience, nor destroy the bonds of society nor do away
with civil government or the regular administration of the
laws, and because transactions in the ordinary course of civil
society as organized within the enemy's territory although
they may have indirectly or remotely promoted the ends of
the de facto or unlawful government organized to effect a
dissolution of the Union, were without blame 'except when
proved to have been entered into with actual intent to
further invasion or insurrection:'" and "That judicial and
legislative acts in the respective states composing the
so-called Confederate States should be respected by the
courts if they were not hostile in their purpose or mode of
enforcement to the authority of the National Government,
and did not impair the rights of citizens under the
Constitution."
In view of the foregoing, it is evident that the Philippine
Executive Commission, which was organized by Order No. 1,
issued on January 23, 1942, by the Commander of the
Japanese forces, was a civil government established by the
military forces of occupation and therefore a de
facto government of the second kind. It was not different
from the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As
Halleck says, "The government established over an enemy's
territory during the military occupation may exercise all the
powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code
imposes. It is of little consequence whether such government
be called a military or civil government. Its character is the
same and the source of its authority the same. In either case
it is a government imposed by the laws of war, and so far it
concerns the inhabitants of such territory or the rest of the
world, those laws alone determine the legality or illegality of
its acts." (Vol. 2, p. 466.) The fact that the Philippine
Executive Commission was a civil and not a military
government and was run by Filipinos and not by Japanese
nationals, is of no consequence. In 1806, when Napoleon
occupied the greater part of Prussia, he retained the existing
administration under the general direction of a french official
(Langfrey History of Napoleon, 1, IV, 25); and, in the same
way, the Duke of Willington, on invading France, authorized
the local authorities to continue the exercise of their
functions, apparently without appointing an English superior.
(Wellington Despatches, XI, 307.). The Germans, on the other
hand, when they invaded France in 1870, appointed their
own officials, at least in Alsace and Lorraine, in every
department of administration and of every rank. (Calvo, pars.
2186-93; Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently
established and organized as a sovereign state independent
from any other government by the Filipino people, was, in
truth and reality, a government established by the belligerent
occupant or the Japanese forces of occupation. It was of the
same character as the Philippine Executive Commission, and
the ultimate source of its authority was the same — the
Japanese military authority and government. As General
MacArthur stated in his proclamation of October 23, 1944, a
portion of which has been already quoted, "under enemy
duress, a so-called government styled as the 'Republic of the
Philippines' was established on October 14, 1943, based upon
neither the free expression of the people's will nor the
sanction of the Government of the United States." Japan had
no legal power to grant independence to the Philippines or
transfer the sovereignty of the United States to, or recognize
the latent sovereignty of, the Filipino people, before its
military occupation and possession of the Islands had
matured into an absolute and permanent dominion or
sovereignty by a treaty of peace or other means recognized
in the law of nations. For it is a well-established doctrine in
International Law, recognized in Article 45 of the Hauge
Conventions of 1907 (which prohibits compulsion of the
population of the occupied territory to swear allegiance to
the hostile power), the belligerent occupation, being
essentially provisional, does not serve to transfer sovereignty
over the territory controlled although the de
jure government is during the period of occupancy deprived
of the power to exercise its rights as such. (Thirty Hogshead
of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4
Wheat., 246; Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U. S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan
to delude the Filipino people into believing in the apparent
magnanimity of the Japanese gesture of transferring or
turning over the rights of government into the hands of
Filipinos. It was established under the mistaken belief that by
doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United
States and other allied nations.
Indeed, even if the Republic of the Philippines had been
established by the free will of the Filipino who, taking
advantage of the withdrawal of the American forces from the
Islands, and the occupation thereof by the Japanese forces of
invasion, had organized an independent government under
the name with the support and backing of Japan, such
government would have been considered as one established
by the Filipinos in insurrection or rebellion against the parent
state or the Unite States. And as such, it would have been
a de facto government similar to that organized by the
confederate states during the war of secession and
recognized as such by the by the Supreme Court of the
United States in numerous cases, notably those of
Thorington vs. Smith, Williams vs. Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the
Island of Cebu during the Spanish-American war, recognized
as a de facto government by the Supreme Court of the United
States in the case of McCleod vs. United States (299 U. S.,
416). According to the facts in the last-named case, the
Spanish forces evacuated the Island of Cebu on December 25,
1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection
against Spain, took possession of the Islands and established
a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And
the said Supreme Court held in that case that "such
government was of the class of de facto governments
described in I Moore's International Law Digest, S 20, . . .
'called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government of
paramount force . . '." That is to say, that the government of
a country in possession of belligerent forces in insurrection or
rebellion against the parent state, rests upon the same
principles as that of a territory occupied by the hostile army
of an enemy at regular war with the legitimate power.
The governments by the Philippine Executive Commission
and the Republic of the Philippines during the Japanese
military occupation being de facto governments, it
necessarily follows that the judicial acts and proceedings of
the courts of justice of those governments, which are not of a
political complexion, were good and valid, and, by virtue of
the well-known principle of postliminy (postliminium) in
international law, remained good and valid after the
liberation or reoccupation of the Philippines by the American
and Filipino forces under the leadership of General Douglas
MacArthur. According to that well-known principle in
international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its
legitimate government of sovereignty, "does not, except in a
very few cases, wipe out the effects of acts done by an
invader, which for one reason or another it is within his
competence to do. Thus judicial acts done under his control,
when they are not of a political complexion, administrative
acts so done, to the extent that they take effect during the
continuance of his control, and the various acts done during
the same time by private persons under the sanction of
municipal law, remain good. Were it otherwise, the whole
social life of a community would be paralyzed by an invasion;
and as between the state and the individuals the evil would
be scarcely less, — it would be hard for example that
payment of taxes made under duress should be ignored, and
it would be contrary to the general interest that the
sentences passed upon criminals should be annulled by the
disappearance of the intrusive government ." (Hall,
International Law, 7th ed., p. 518.) And when the occupation
and the abandonment have been each an incident of the
same war as in the present case, postliminy applies, even
though the occupant has acted as conqueror and for the time
substituted his own sovereignty as the Japanese intended to
do apparently in granting independence to the Philippines
and establishing the so-called Republic of the Philippines.
(Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de
facto governments, which are not of a political complexion,
are and remain valid after reoccupation of a territory
occupied by a belligerent occupant, is confirmed by the
Proclamation issued by General Douglas MacArthur on
October 23, 1944, which declares null and void all laws,
regulations and processes of the governments established in
the Philippines during the Japanese occupation, for it would
not have been necessary for said proclamation to abrogate
them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the
phrase "processes of any other government" as used in the
above-quoted proclamation of General Douglas MacArthur of
October 23, 1944 — that is, whether it was the intention of
the Commander in Chief of the American Forces to annul and
void thereby all judgments and judicial proceedings of the
courts established in the Philippines during the Japanese
military occupation.
The phrase "processes of any other government" is broad
and may refer not only to the judicial processes, but also to
administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other
governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that,
as above indicated, according to the well-known principles of
international law all judgements and judicial proceedings,
which are not of a political complexion, of the de
facto governments during the Japanese military occupation
were good and valid before and remained so after the
occupied territory had come again into the power of the
titular sovereign, it should be presumed that it was not, and
could not have been, the intention of General Douglas
MacArthur, in using the phrase "processes of any other
government" in said proclamation, to refer to judicial
processes, in violation of said principles of international law.
The only reasonable construction of the said phrase is that it
refers to governmental processes other than judicial
processes of court proceedings, for according to a
well-known rule of statutory construction, set forth in 25 R. C.
L., p. 1028, "a statute ought never to be construed to violate
the law of nations if any other possible construction
remains."
It is true that the commanding general of a belligerent army
of occupation, as an agent of his government, may not
unlawfully suspend existing laws and promulgate new ones in
the occupied territory, if and when the exigencies of the
military occupation demand such action. But even assuming
that, under the law of nations, the legislative power of a
commander in chief of military forces who liberates or
reoccupies his own territory which has been occupied by an
enemy, during the military and before the restoration of the
civil regime, is as broad as that of the commander in chief of
the military forces of invasion and occupation (although the
exigencies of military reoccupation are evidently less than
those of occupation), it is to be presumed that General
Douglas MacArthur, who was acting as an agent or a
representative of the Government and the President of the
United States, constitutional commander in chief of the
United States Army, did not intend to act against the
principles of the law of nations asserted by the Supreme
Court of the United States from the early period of its
existence, applied by the Presidents of the United States, and
later embodied in the Hague Conventions of 1907, as above
indicated. It is not to be presumed that General Douglas
MacArthur, who enjoined in the same proclamation of
October 23, 1944, "upon the loyal citizens of the Philippines
full respect and obedience to the Constitution of the
Commonwealth of the Philippines," should not only reverse
the international policy and practice of his own government,
but also disregard in the same breath the provisions of
section 3, Article II, of our Constitution, which provides that
"The Philippines renounces war as an instrument of national
policy, and adopts the generally accepted principles of
international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience
and public hardship would result, and great public interests
would be endangered and sacrificed, for disputes or suits
already adjudged would have to be again settled accrued or
vested rights nullified, sentences passed on criminals set
aside, and criminals might easily become immune for
evidence against them may have already disappeared or be
no longer available, especially now that almost all court
records in the Philippines have been destroyed by fire as a
consequence of the war. And it is another well-established
rule of statutory construction that where great
inconvenience will result from a particular construction, or
great public interests would be endangered or sacrificed, or
great mischief done, such construction is to be avoided, or
the court ought to presume that such construction was not
intended by the makers of the law, unless required by clear
and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular
sovereign or his representatives who reoccupies a territory
occupied by an enemy, may set aside or annul all the judicial
acts or proceedings of the tribunals which the belligerent
occupant had the right and duty to establish in order to
insure public order and safety during military occupation,
would be sufficient to paralyze the social life of the country
or occupied territory, for it would have to be expected that
litigants would not willingly submit their litigation to courts
whose judgements or decisions may afterwards be annulled,
and criminals would not be deterred from committing crimes
or offenses in the expectancy that they may escaped the
penalty if judgments rendered against them may be
afterwards set aside.
That the proclamation has not invalidated all the judgements
and proceedings of the courts of justice during the Japanese
regime, is impliedly confirmed by Executive Order No. 37,
which has the force of law, issued by the President of the
Philippines on March 10, 1945, by virtue of the emergency
legislative power vested in him by the Constitution and the
laws of the Commonwealth of the Philippines. Said Executive
order abolished the Court of Appeals, and provided "that all
case which have heretofore been duly appealed to the Court
of Appeals shall be transmitted to the Supreme Court final
decision." This provision impliedly recognizes that the
judgments and proceedings of the courts during the Japanese
military occupation have not been invalidated by the
proclamation of General MacArthur of October 23, because
the said Order does not say or refer to cases which have been
duly appealed to said court prior to the Japanese occupation,
but to cases which had therefore, that is, up to March 10,
1945, been duly appealed to the Court of Appeals; and it is to
be presumed that almost all, if not all, appealed cases
pending in the Court of Appeals prior to the Japanese military
occupation of Manila on January 2, 1942, had been disposed
of by the latter before the restoration of the Commonwealth
Government in 1945; while almost all, if not all, appealed
cases pending on March 10, 1945, in the Court of Appeals
were from judgments rendered by the Court of First Instance
during the Japanese regime.
The respondent judge quotes a portion of Wheaton's
International Law which say: "Moreover when it is said that
an occupier's acts are valid and under international law
should not be abrogated by the subsequent conqueror, it
must be remembered that no crucial instances exist to show
that if his acts should be reversed, any international wrong
would be committed. What does happen is that most matters
are allowed to stand by the restored government, but the
matter can hardly be put further than this." (Wheaton,
International Law, War, 7th English edition of 1944, p. 245.)
And from this quotion the respondent judge "draws the
conclusion that whether the acts of the occupant should be
considered valid or not, is a question that is up to the
restored government to decide; that there is no rule of
international law that denies to the restored government to
decide; that there is no rule of international law that denies
to the restored government the right of exercise its
discretion on the matter, imposing upon it in its stead the
obligation of recognizing and enforcing the acts of the
overthrown government."
There is doubt that the subsequent conqueror has the right
to abrogate most of the acts of the occupier, such as the laws,
regulations and processes other than judicial of the
government established by the belligerent occupant. But in
view of the fact that the proclamation uses the words
"processes of any other government" and not "judicial
processes" prisely, it is not necessary to determine whether
or not General Douglas MacArthur had power to annul and
set aside all judgments and proceedings of the courts during
the Japanese occupation. The question to be determined is
whether or not it was his intention, as representative of the
President of the United States, to avoid or nullify them. If the
proclamation had, expressly or by necessary implication,
declared null and void the judicial processes of any other
government, it would be necessary for this court to decide in
the present case whether or not General Douglas MacArthur
had authority to declare them null and void. But the
proclamation did not so provide, undoubtedly because the
author thereof was fully aware of the limitations of his
powers as Commander in Chief of Military Forces of
liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of
international law, as they result from the usages established
between civilized nations, the laws of humanity and the
requirements of the public of conscience, constitute or from
the law of nations. (Preamble of the Hague Conventions;
Westlake, International Law, 2d ed., Part II, p. 61.) Article 43,
section III, of the Hague Regulations or Conventions which we
have already quoted in discussing the first question, imposes
upon the occupant the obligation to establish courts; and
Article 23 (h), section II, of the same Conventions, which
prohibits the belligerent occupant "to declare . . .
suspended . . . in a Court of Law the rights and action of the
nationals of the hostile party," forbids him to make any
declaration preventing the inhabitants from using their
courts to assert or enforce their civil rights. (Decision of the
Court of Appeals of England in the case of
Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a
belligerent occupant is required to establish courts of justice
in the territory occupied, and forbidden to prevent the
nationals thereof from asserting or enforcing therein their
civil rights, by necessary implication, the military commander
of the forces of liberation or the restored government is
restrained from nullifying or setting aside the judgments
rendered by said courts in their litigation during the period of
occupation. Otherwise, the purpose of these precepts of the
Hague Conventions would be thwarted, for to declare them
null and void would be tantamount to suspending in said
courts the right and action of the nationals of the territory
during the military occupation thereof by the enemy. It goes
without saying that a law that enjoins a person to do
something will not at the same time empower another to
undo the same. Although the question whether the President
or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of
his country is obviously of a domestic nature, yet, in
construing and applying limitations imposed on the executive
authority, the Supreme Court of the United States, in the
case of Ochoa, vs. Hernandez (230 U.S., 139), has declared
that they "arise from general rules of international law and
from fundamental principles known wherever the American
flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special
order issued by the officer in command of the forces of the
United States in South Carolina after the end of the Civil War,
wholly annulling a decree rendered by a court of chancery in
that state in a case within its jurisdiction, was declared void,
and not warranted by the acts approved respectively March 2,
1867 (14 Stat., 428), and July 19 of the same year (15 id., 14),
which defined the powers and duties of military officers in
command of the several states then lately in rebellion. In the
course of its decision the court said; "We have looked
carefully through the acts of March 2, 1867 and July 19, 1867.
They give very large governmental powers to the military
commanders designated, within the States committed
respectively to their jurisdiction; but we have found nothing
to warrant the order here in question. . . . The clearest
language would be necessary to satisfy us that Congress
intended that the power given by these acts should be so
exercised. . . . It was an arbitrary stretch of authority, needful
to no good end that can be imagined. Whether Congress
could have conferred the power to do such an act is a
question we are not called upon to consider. It is an
unbending rule of law that the exercise of military power,
where the rights of the citizen are concerned, shall never be
pushed beyond what the exigency requires.
(Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4
Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's
L.C., pt. 2, p. 934.) Viewing the subject before us from the
standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General
MacArthur of October 23, 1944, which declared that "all laws,
regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and
void without legal effect in areas of the Philippines free of
enemy occupation and control," has not invalidated the
judicial acts and proceedings, which are not a political
complexion, of the courts of justice in the Philippines that
were continued by the Philippine Executive Commission and
the Republic of the Philippines during the Japanese military
occupation, and that said judicial acts and proceedings were
good and valid before and now good and valid after the
reoccupation of liberation of the Philippines by the American
and Filipino forces.
3. The third and last question is whether or not the courts of
the Commonwealth, which are the same as those existing
prior to, and continued during, the Japanese military
occupation by the Philippine Executive Commission and by
the so-called Republic of the Philippines, have jurisdiction to
continue now the proceedings in actions pending in said
courts at the time the Philippine Islands were reoccupied or
liberated by the American and Filipino forces, and the
Commonwealth Government was restored.
Although in theory the authority the authority of the local
civil and judicial administration is suspended as a matter of
course as soon as military occupation takes place, in practice
the invader does not usually take the administration of
justice into his own hands, but continues the ordinary courts
or tribunals to administer the laws of the country which he is
enjoined, unless absolutely prevented, to respect. As stated
in the above-quoted Executive Order of President McKinley
to the Secretary of War on May 19, 1898, "in practice, they
(the municipal laws) are not usually abrogated but are
allowed to remain in force and to be administered by the
ordinary tribunals substantially as they were before the
occupation. This enlightened practice is, so far as possible, to
be adhered to on the present occasion." And Taylor in this
connection says: "From a theoretical point of view it may be
said that the conqueror is armed with the right to substitute
his arbitrary will for all preexisting forms of government,
legislative, executive and judicial. From the stand-point of
actual practice such arbitrary will is restrained by the
provision of the law of nations which compels the conqueror
to continue local laws and institution so far as military
necessity will permit." (Taylor, International Public Law,
p.596.) Undoubtedly, this practice has been adopted in order
that the ordinary pursuits and business of society may not be
unnecessarily deranged, inasmuch as belligerent occupation
is essentially provisional, and the government established by
the occupant of transient character.
Following these practice and precepts of the law of nations,
Commander in Chief of the Japanese Forces proclaimed on
January 3, 1942, when Manila was occupied, the military
administration under martial law over the territory occupied
by the army, and ordered that "all the laws now in force in
the Commonwealth, as well as executive and judicial
institutions, shall continue to be affective for the time being
as in the past," and "all public officials shall remain in their
present post and carry on faithfully their duties as before."
When the Philippine Executive Commission was organized by
Order No. 1 of the Japanese Commander in Chief, on January
23, 1942, the Chairman of the Executive Commission, by
Executive Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of Appeals,
Court of First Instance, and justices of the peace of courts,
with the same jurisdiction in conformity with the instructions
given by the Commander in Chief of the Imperial Japanese
Army in Order No. 3 of February 20, 1942. And on October 14,
1943 when the so-called Republic of the Philippines was
inaugurated, the same courts were continued with no
substantial change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the
Islands prior to the Japanese military occupation had been
continued during the Japanese military administration, the
Philippine Executive Commission, and the so-called Republic
of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as
having in continued existence upon the reoccupation and
liberation of the Philippines by virtue of the principle of
postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts,
without necessity of enacting a law conferring jurisdiction
upon them to continue said proceedings. As Taylor
graphically points out in speaking of said principles "a state or
other governmental entity, upon the removal of a foreign
military force, resumes its old place with its right and duties
substantially unimpaired. . . . Such political resurrection is the
result of a law analogous to that which enables elastic bodies
to regain their original shape upon removal of the external
force, — and subject to the same exception in case of
absolute crushing of the whole fibre and content." (Taylor,
International Public Law, p. 615.)
The argument advanced by the respondent judge in his
resolution in support in his conclusion that the Court of First
Instance of Manila presided over by him "has no authority to
take cognizance of, and continue said proceedings (of this
case) to final judgment until and unless the Government of
the Commonwealth of the Philippines . . . shall have provided
for the transfer of the jurisdiction of the courts of the now
defunct Republic of the Philippines, and the cases
commenced and the left pending therein," is "that said courts
were a government alien to the Commonwealth Government.
The laws they enforced were, true enough, laws of the
Commonwealth prior to Japanese occupation, but they had
become the laws — and the courts had become the
institutions — of Japan by adoption (U.S. vs.Reiter. 27 F.
Cases, No. 16146), as they became later on the laws and
institutions of the Philippine Executive Commission and the
Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could
not say that the laws and institutions of the country occupied
if continued by the conqueror or occupant, become the laws
and the courts, by adoption, of the sovereign nation that is
militarily occupying the territory. Because, as already shown,
belligerent or military occupation is essentially provisional
and does not serve to transfer the sovereignty over the
occupied territory to the occupant. What the court said was
that, if such laws and institutions are continued in use by the
occupant, they become his and derive their force from him,
in the sense that he may continue or set them aside. The
laws and institution or courts so continued remain the laws
and institutions or courts of the occupied territory. The laws
and the courts of the Philippines, therefore, did not become,
by being continued as required by the law of nations, laws
and courts of Japan. The provision of Article 45, section III, of
the Hague Conventions of 1907 which prohibits any
compulsion of the population of occupied territory to swear
allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by
the invader in the legitimate sovereignty. This duty is neither
to innovate in the political life of the occupied districts, nor
needlessly to break the continuity of their legal life. Hence, so
far as the courts of justice are allowed to continue
administering the territorial laws, they must be allowed to
give their sentences in the name of the legitimate sovereign "
(Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that
of the legitimate government. When in 1870, the Germans in
France attempted to violate that rule by ordering, after the
fall of the Emperor Napoleon, the courts of Nancy to
administer justice in the name of the "High German Powers
occupying Alsace and Lorraine," upon the ground that the
exercise of their powers in the name of French people and
government was at least an implied recognition of the
Republic, the courts refused to obey and suspended their
sitting. Germany originally ordered the use of the name of
"High German Powers occupying Alsace and Lorraine," but
later offered to allow use of the name of the Emperor or a
compromise. (Wheaton, International Law, War, 7th English
ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a
political nature, "Law once established continues until
changed by the some competent legislative power. It is not
change merely by change of sovereignty." (Joseph H. Beale,
Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same
author says, in his Treatise on the Conflict on Laws
(Cambridge, 1916, Section 131): "There can no break or
interregnum in law. From the time the law comes into
existence with the first-felt corporateness of a primitive
people it must last until the final disappearance of human
society. Once created, it persists until a change take place,
and when changed it continues in such changed condition
until the next change, and so forever. Conquest or
colonization is impotent to bring law to an end; in spite of
change of constitution, the law continues unchanged until
the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence
defends upon that of the laws which create and confer upon
them their jurisdiction, it is evident that such laws, not being
a political nature, are not abrogated by a change of
sovereignty, and continue in force "ex proprio vigore" unless
and until repealed by legislative acts. A proclamation that
said laws and courts are expressly continued is not necessary
in order that they may continue in force. Such proclamation,
if made, is but a declaration of the intention of respecting
and not repealing those laws. Therefore, even assuming that
Japan had legally acquired sovereignty over these Islands,
which she had afterwards transferred to the so-called
Republic of the Philippines, and that the laws and the courts
of these Islands had become the courts of Japan, as the said
courts of the laws creating and conferring jurisdiction upon
them have continued in force until now, it necessarily follows
that the same courts may continue exercising the same
jurisdiction over cases pending therein before the restoration
of the Commonwealth Government, unless and until they are
abolished or the laws creating and conferring jurisdiction
upon them are repealed by the said government. As a
consequence, enabling laws or acts providing that
proceedings pending in one court be continued by or
transferred to another court, are not required by the mere
change of government or sovereignty. They are necessary
only in case the former courts are abolished or their
jurisdiction so change that they can no longer continue taking
cognizance of the cases and proceedings commenced therein,
in order that the new courts or the courts having jurisdiction
over said cases may continue the proceedings. When the
Spanish sovereignty in the Philippine Islands ceased and the
Islands came into the possession of the United States, the
"Audiencia" or Supreme Court was continued and did not
cease to exist, and proceeded to take cognizance of the
actions pending therein upon the cessation of the Spanish
sovereignty until the said "Audiencia" or Supreme Court was
abolished, and the Supreme Court created in Chapter II of Act
No. 136 was substituted in lieu thereof. And the Courts of
First Instance of the Islands during the Spanish regime
continued taking cognizance of cases pending therein upon
the change of sovereignty, until section 65 of the same Act
No. 136 abolished them and created in its Chapter IV the
present Courts of First Instance in substitution of the former.
Similarly, no enabling acts were enacted during the Japanese
occupation, but a mere proclamation or order that the courts
in the Island were continued.
On the other hand, during the American regime, when
section 78 of Act No. 136 was enacted abolishing the civil
jurisdiction of the provost courts created by the military
government of occupation in the Philippines during the
Spanish-American War of 1898, the same section 78 provided
for the transfer of all civil actions then pending in the provost
courts to the proper tribunals, that is, to the justices of the
peace courts, Court of First Instance, or Supreme Court
having jurisdiction over them according to law. And later on,
when the criminal jurisdiction of provost courts in the City of
Manila was abolished by section 3 of Act No. 186, the same
section provided that criminal cases pending therein within
the jurisdiction of the municipal court created by Act No. 183
were transferred to the latter.
That the present courts as the same courts which had been
functioning during the Japanese regime and, therefore, can
continue the proceedings in cases pending therein prior to
the restoration of the Commonwealth of the Philippines, is
confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the
second question. Said Executive Order provides"(1) that the
Court of Appeals created and established under
Commonwealth Act No. 3 as amended, be abolished, as it is
hereby abolished," and "(2) that all cases which have
heretofore been duly appealed to the Court of Appeals shall
be transmitted to the Supreme Court for final decision. . . ."
In so providing, the said Order considers that the Court of
Appeals abolished was the same that existed prior to, and
continued after, the restoration of the Commonwealth
Government; for, as we have stated in discussing the
previous question, almost all, if not all, of the cases pending
therein, or which had theretofore (that is, up to March 10,
1945) been duly appealed to said court, must have been
cases coming from the Courts of First Instance during the
so-called Republic of the Philippines. If the Court of Appeals
abolished by the said Executive Order was not the same one
which had been functioning during the Republic, but that
which had existed up to the time of the Japanese occupation,
it would have provided that all the cases which had, prior to
and up to that occupation on January 2, 1942, been dully
appealed to the said Court of Appeals shall be transmitted to
the Supreme Court for final decision.
It is, therefore, obvious that the present courts have
jurisdiction to continue, to final judgment, the proceedings in
cases, not of political complexion, pending therein at the
time of the restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the
Court of First Instance of Manila has jurisdiction to continue
to final judgment the proceedings in civil case No. 3012,
which involves civil rights of the parties under the laws of the
Commonwealth Government, pending in said court at the
time of the restoration of the said Government; and that the
respondent judge of the court, having refused to act and
continue him does a duty resulting from his office as
presiding judge of that court, mandamus is the speedy and
adequate remedy in the ordinary course of law, especially
taking into consideration the fact that the question of
jurisdiction herein involved does affect not only this
particular case, but many other cases now pending in all the
courts of these Islands.

In view of all the foregoing it is adjudged and decreed that a

writ of mandamus issue, directed to the respondent judge of
the Court of First Instance of Manila, ordering him to take
cognizance of and continue to final judgment the
proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

G.R. No. L-36409 October 26, 1973
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LORETA GOZO, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant
Solicitor General Jaime M. Lantin and Solicitor Norberto P.
Eduardo for plaintiff-appellee.
Jose T. Nery for defendant-appellant.
FERNANDO, J.:
Appellant seeks to set aside a judgment of the Court of First
Instance of Zambales, convicting her of a violation of an
ordinance of Olongapo, Zambales, requiring a permit from
the municipal mayor for the construction or erection of a
building, as well as any modification, alteration, repair or
demolition thereof. She questions its validity, or at the very
least, its applicability to her, by invoking due process,1 a
contention she would premise on what for her is the teaching
of People v. Fajardo.2 If such a ground were far from being
impressed with solidity, she stands on quicksand when she
would deny the applicability of the ordinance to her, on the
pretext that her house was constructed within the naval base
leased to the American armed forces. While yielding to the
well-settled doctrine that it does not thereby cease to be
Philippine territory, she would, in effect, seek to emasculate
our sovereign rights by the assertion that we cannot exercise
therein administrative jurisdiction. To state the proposition is
to make patent how much it is tinged with unorthodoxy.
Clearly then, the lower court decision must be affirmed with
the sole modification that she is given thirty days from the
finality of a judgment to obtain a permit, failing which, she is
required to demolish the same.
The facts are undisputed. As set forth in the decision of the
lower court: "The accused bought a house and lot located
inside the United States Naval Reservation within the
territorial jurisdiction of Olongapo City. She demolished the
house and built another one in its place, without a building
permit from the City Mayor of Olongapo City, because she
was told by one Ernesto Evalle, an assistant in the City
Mayor's office, as well as by her neighbors in the area, that
such building permit was not necessary for the construction
of the house. On December 29, 1966, Juan Malones, a
building and lot inspector of the City Engineer's Office,
Olongapo City, together with Patrolman Ramon Macahilas of
the Olongapo City police force apprehended four carpenters
working on the house of the accused and they brought the
carpenters to the Olongapo City police headquarters for
interrogation. ... After due investigation, Loreta Gozo was
charged with violation of Municipal Ordinance No. 14, S. of
1964 with the City Fiscal's Office."3 The City Court of
Olongapo City found her guilty of violating Municipal
Ordinance No. 14, Series of 1964 and sentenced her to an
imprisonment of one month as well as to pay the costs. The
Court of Instance of Zambales, on appeal, found her guilty on
the above facts of violating such municipal ordinance but
would sentence her merely to pay a fine of P200.00 and to
demolish the house thus erected. She elevated the case to
the Court of Appeals but in her brief, she would put in issue
the validity of such an ordinance on constitutional ground or
at the very least its applicability to her in view of the location
of her dwelling within the naval base. Accordingly, the Court
of Appeals, in a resolution of January 29, 1973, noting the
constitutional question raised, certified the case to this
Court.
There is, as mentioned in the opening paragraph of this
petition, no support in law for the stand taken by appellant.
1. It would be fruitless for her to assert that local government
units are devoid of authority to require building permits. This
Court, from Switzer v. Municipality of
Cebu,4 decided in 1911, has sanctioned the validity of such
measures. It is much too late in the day to contend that such
a requirement cannot be validly imposed. Even appellant,
justifiably concerned about the unfavorable impression that
could be created if she were to deny that such competence is
vested in municipal corporations and chartered cities, had to
concede in her brief: "If, at all; the questioned ordinance may
be predicated under the general welfare clause ... ."5 Its
scope is wide, well-nigh all embracing, covering every aspect
of public health, public morals, public safety, and the well
being and good order of the community.6
It goes without saying that such a power is subject to
limitations. Certainly, if its exercise is violative of any
constitutional right, then its validity could be impugned, or at
the very least, its applicability to the person adversely
affected could be questioned. So much is settled law.
Apparently, appellant has adopted the view that a due
process question may indeed be raised in view of what for
her is its oppressive character. She is led to such a conclusion,
relying on People v. Fajardo.7 A more careful scrutiny of such
a decision would not have led her astray, for that case is
easily distinguishable. The facts as set forth in the opinion
follow: "It appears that on August 15, 1950, during the
incumbency of defendant-appellant Juan F. Fajardo as mayor
of the municipality of Baao, Camarines Sur, the municipal
council passed the ordinance in question providing as follows:
"... 1. Any person or persons who will construct or repair a
building should, before constructing or repairing, obtain a
written permit from the Municipal Mayor. ... 2. A fee of not
less than P2.00 should be charged for each building permit
and P1.00 for each repair permit issued. ... 3. [Penalty]-Any
violation of the provisions of the above, this ordinance, shall
make the violator liable to pay a fine of not less than P25 nor
more than P50 or imprisonment of not less than 12 days nor
more than 24 days or both, at the discretion of the court. If
said building destroys the view of the Public Plaza or occupies
any public property, it shall be removed at the expense of the
owner of the building or house. ... ." Four years later, after
the term of appellant Fajardo as mayor had expired, he and
his son-in-law, appellant Babilonia, filed a written request
with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a
parcel of land registered in Fajardo's name, located along the
national highway and separated from the public plaza by a
creek ... . On January 16, 1954, the request was denied, for
the reason among others that the proposed building would
destroy the view or beauty of the public plaza ... . On January
18, 1954, defendants reiterated their request for a building
permit ..., but again the request was turned down by the
mayor. Whereupon, appellants proceeded with the
construction of the building without a permit, because they
needed a place of residence very badly, their former house
having been destroyed by a typhoon and hitherto they had
been living on leased property."8
Clearly then, the application of such an ordinance to Fajardo
was oppressive. A conviction therefore for a violation thereof
both in the justice of the peace court of Baao, Camarines Sur
as well as in the Court of First Instance could not be sustained.
In this case, on the contrary, appellant never bothered to
comply with the ordinance. Perhaps aware of such a crucial
distinction, she would assert in her brief: "The evidence
showed that even if the accused were to secure a permit
from the Mayor, the same would not have been granted. To
require the accused to obtain a permit before constructing
her house would be an exercise in futility. The law will not
require anyone to perform an impossibility, neither in law or
in fact: ... ."9 It would be from her own version, at the very
least then, premature to anticipate such an adverse result,
and thus to condemn an ordinance which certainly lends
itself to an interpretation that is neither oppressive, unfair, or
unreasonable. That kind of interpretation suffices to remove
any possible question of its validity, as was expressly
announced in Primicias v. Fugoso. 10 So it appears from this
portion of the opinion of Justice Feria, speaking for the Court:
"Said provision is susceptible of two constructions: one is
that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse to grant permit for
the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City
of Manila; and the other is that the applicant has the right to
a permit which shall be granted by the Mayor, subject only to
the latter's reasonable discretion to determine or specify the
streets or public places to be used for the purpose, with a
view to prevent confusion by overlapping, to secure
convenient use of the streets and public places by others,
and to provide adequate and proper policing to minimize the
risk of disorder. After a mature deliberation, we have arrived
at the conclusion that we must adopt the second
construction, that is, construe the provisions of the said
ordinance to mean that it does not confer upon the Mayor
the power to refuse to grant the permit, but only the
discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may
pass or the meeting may be held." 11 If, in a case affecting
such a preferred freedom as the right to assembly, this Court
could construe an ordinance of the City of Manila so as to
avoid offending against a constitutional provision, there is
nothing to preclude it from a similar mode of approach in
order to show the lack of merit of an attack against an
ordinance requiring a permit. Appellant cannot therefore
take comfort from any broad statement in the Fajardo
opinion, which incidentally is taken out of context,
considering the admitted oppressive application of the
challenged measure in that litigation. So much then for the
contention that she could not have been validly convicted for
a violation of such ordinance. Nor should it be forgotten that
she did suffer the same fate twice, once from the City Court
and thereafter from the Court of First Instance. The reason is
obvious.Such ordinance applies to her.
2. Much less is a reversal indicated because of the alleged
absence of the rather novel concept of administrative
jurisdiction on the part of Olongapo City. Nor is novelty the
only thing that may be said against it. Far worse is the
assumption at war with controlling and authoritative
doctrines that the mere existence of military or naval bases
of a foreign country cuts deeply into the power to govern.
Two leading cases may be cited to show how offensive is
such thinking to the juristic concept of sovereignty, People v.
Acierto, 12 and Reagan v. Commissioner of Internal
Revenue. 13 As was so emphatically set forth by Justice
Tuason in Acierto: "By the Agreement, it should be noted, the
Philippine Government merely consents that the United
States exercise jurisdiction in certain cases. The consent was
given purely as a matter of comity, courtesy, or expediency.
The Philippine Government has not abdicated its sovereignty
over the bases as part of the Philippine territory or divested
itself completely of jurisdiction over offenses committed
therein. Under the terms of the treaty, the United States
Government has prior or preferential but not exclusive
jurisdiction of such offenses. The Philippine Government
retains not only jurisdictional rights not granted, but also all
such ceded rights as the United States Military authorities for
reasons of their own decline to make use of. The first
proposition is implied from the fact of Philippine sovereignty
over the bases; the second from the express provisions of the
treaty." 14 There was a reiteration of such a view in Reagan.
Thus: "Nothing is better settled than that the Philippines
being independent and sovereign, its authority may be
exercised over its entire domain. There is no portion thereof
that is beyond its power. Within its limits, its decrees are
supreme, its commands paramount. Its laws govern therein,
and everyone to whom it applies must submit to its terms.
That is the extent of its jurisdiction, both territorial and
personal. Necessarily, likewise, it has to be exclusive. If it
were not thus, there is a diminution of sovereignty." 15 Then
came this paragraph dealing with the principle of
auto-limitation: "It is to be admitted any state may, by its
consent, express or implied, submit to a restriction of its
sovereign rights. There may thus be a curtailment of what
otherwise is a power plenary in character. That is the concept
of sovereignty as auto-limitation, which, in the succinct
language of Jellinek, "is the property of a state-force due to
which it has the exclusive capacity of legal self-determination
and self-restriction." A state then, if it chooses to, may refrain
from the exercise of what otherwise is illimitable
competence." 16 The opinion was at pains to point out though
that even then, there is at the most diminution of
jurisdictional rights, not its disappearance. The words
employed follow: "Its laws may as to some persons found
within its territory no longer control. Nor does the matter
end there. It is not precluded from allowing another power to
participate in the exercise of jurisdictional right over certain
portions of its territory. If it does so, it by no means follows
that such areas become impressed with an alien character.
They retain their status as native soil. They are still subject to
its authority. Its jurisdiction may be diminished, but it does
not disappear. So it is with the bases under lease to the
American armed forces by virtue of the military bases
agreement of 1947. They are not and cannot be foreign
territory." 17
Can there be anything clearer, therefore, than that only a
turnabout, unwarranted and unjustified, from what is settled
and orthodox law can lend the slightest degree of plausibility
to the contention of absence of administrative jurisdiction. If
it were otherwise, what was aptly referred to by Justice
Tuason "as a matter of comity, courtesy, or expediency"
becomes one of obeisance and submission. If on a concern
purely domestic in its implications, devoid of any connection
with national security, the Military-Bases Agreement could be
thus interpreted, then sovereignty indeed becomes a
mockery and an illusion. Nor does appellant's thesis rest on
less shaky foundation by the mere fact that Acierto and
Reagan dealt with the competence of the national
government, while what is sought to be emasculated in this
case is the so-called administrative jurisdiction of a municipal
corporation. Within the limits of its territory, whatever
statutory powers are vested upon it may be validly exercised.
Any residual authority and therein conferred, whether
expressly or impliedly, belongs to the national government,
not to an alien country. What is even more to be deplored in
this stand of appellant is that no such claim is made by the
American naval authorities, not that it would do them any
good if it were so asserted. To quote from Acierto anew: "The
carrying out of the provisions of the Bases Agreement is the
concern of the contracting parties alone. Whether, therefore,
a given case which by the treaty comes within the United
States jurisdiction should be transferred to the Philippine
authorities is a matter about which the accused has nothing
to do or say. In other words, the rights granted to the United
States by the treaty insure solely to that country and can not
be raised by the offender." 18 If an accused would suffer from
such disability, even if the American armed forces were the
beneficiary of a treaty privilege, what is there for appellant to
take hold of when there is absolutely no showing of any
alleged grant of what is quaintly referred to as administrative
jurisdiction? That is all, and it is more than enough, to make
manifest the futility of seeking a reversal.
WHEREFORE, the appealed decision of November 11, 1969 is
affirmed insofar as it found the accused, Loreta Gozo, guilty
beyond reasonable doubt of a violation of Municipal
Ordinance No. 14, series of 1964 and sentencing her to pay a
fine of P200.00 with subsidiary imprisonment in case of
insolvency, and modified insofar as she is required to
demolish the house that is the subject matter of the case, she
being given a period of thirty days from the finality of this
decision within which to obtain the required permit. Only
upon her failure to do so will that portion of the appealed
decision requiringdemolition be enforced. Costs against the
accused.
Makalintal, C.J., Zaldivar, Castro, Teehankee, Makasiar,
Antonio and Esguerra, JJ., concur.
Barredo, J., took no part.

G.R. No. L-409 January 30, 1947
ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez,
Jr., for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpusfiled by
Anastacio Laurel and based on a theory that a Filipino citizen
who adhered to the enemy giving the latter aid and comfort
during the Japanese occupation cannot be prosecuted for the
crime of treason defined and penalized by article 114 of the
Revised Penal Code, for the reason (1) that the sovereignty of
the legitimate government in the Philippines and,
consequently, the correlative allegiance of Filipino citizens
thereto was then suspended; and (2) that there was a change
of sovereignty over these Islands upon the proclamation of
the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified
and temporary, but an absolute and permanent allegiance,
which consists in the obligation of fidelity and obedience to
his government or sovereign; and that this absolute and
permanent allegiance should not be confused with the
qualified and temporary allegiance which a foreigner owes to
the government or sovereign of the territory wherein he
resides, so long as he remains there, in return for the
protection he receives, and which consists in the obedience
to the laws of the government or sovereign. (Carlisle vs. Unite
States, 21 Law. ed., 429; Secretary of State Webster Report
to the President of the United States in the case of Thraser, 6
Web. Works, 526);
Considering that the absolute and permanent allegiance of
the inhabitants of a territory occupied by the enemy of their
legitimate government or sovereign is not abrogated or
severed by the enemy occupation, because the sovereignty
of the government or sovereign de jure is not transferred
thereby to the occupier, as we have held in the cases of Co
Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and
of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not
transferred to the occupant it must necessarily remain vested
in the legitimate government; that the sovereignty vested in
the titular government (which is the supreme power which
governs a body politic or society which constitute the state)
must be distinguished from the exercise of the rights
inherent thereto, and may be destroyed, or severed and
transferred to another, but it cannot be suspended because
the existence of sovereignty cannot be suspended without
putting it out of existence or divesting the possessor thereof
at least during the so-called period of suspension; that what
may be suspended is the exercise of the rights of sovereignty
with the control and government of the territory occupied by
the enemy passes temporarily to the occupant; that the
subsistence of the sovereignty of the legitimate government
in a territory occupied by the military forces of the enemy
during the war, "although the former is in fact prevented
from exercising the supremacy over them" is one of the
"rules of international law of our times"; (II Oppenheim, 6th
Lauterpacht ed., 1944, p. 482), recognized, by necessary
implication, in articles 23, 44, 45, and 52 of Hague Regulation;
and that, as a corollary of the conclusion that the sovereignty
itself is not suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to their
legitimate government or sovereign subsists, and therefore
there is no such thing as suspended allegiance, the basic
theory on which the whole fabric of the petitioner's
contention rests;
Considering that the conclusion that the sovereignty of the
United State was suspended in Castine, set forth in the
decision in the case of United States vs. Rice, 4 Wheaton, 246,
253, decided in 1819, and quoted in our decision in the cases
of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs.
Director of Prisons, supra, in connection with the question,
not of sovereignty, but of the existence of a government de
factotherein and its power to promulgate rules and laws in
the occupied territory, must have been based, either on the
theory adopted subsequently in the Hague Convention of
1907, that the military occupation of an enemy territory does
not transfer the sovereignty to the occupant; that, in the first
case, the word "sovereignty" used therein should be
construed to mean the exercise of the rights of sovereignty,
because as this remains vested in the legitimate government
and is not transferred to the occupier, it cannot be
suspended without putting it out of existence or divesting
said government thereof; and that in the second case, that is,
if the said conclusion or doctrine refers to the suspension of
the sovereignty itself, it has become obsolete after the
adoption of the Hague Regulations in 1907, and therefore it
can not be applied to the present case;
Considering that even adopting the words "temporarily
allegiance," repudiated by Oppenheim and other publicists,
as descriptive of the relations borne by the inhabitants of the
territory occupied by the enemy toward the military
government established over them, such allegiance may, at
most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of
the territory wherein he resides in return for the protection
he receives as above described, and does not do away with
the absolute and permanent allegiance which the citizen
residing in a foreign country owes to his own government or
sovereign; that just as a citizen or subject of a government or
sovereign may be prosecuted for and convicted of treason
committed in a foreign country, in the same way an
inhabitant of a territory occupied by the military forces of the
enemy may commit treason against his own legitimate
government or sovereign if he adheres to the enemies of the
latter by giving them aid and comfort; and that if the
allegiance of a citizen or subject to his government or
sovereign is nothing more than obedience to its laws in
return for the protection he receives, it would necessarily
follow that a citizen who resides in a foreign country or state
would, on one hand, ipso factoacquire the citizenship thereof
since he has enforce public order and regulate the social and
commercial life, in return for the protection he receives, and
would, on the other hand, lose his original citizenship,
because he would not be bound to obey most of the laws of
his own government or sovereign, and would not receive,
while in a foreign country, the protection he is entitled to in
his own;
Considering that, as a corollary of the suspension of the
exercise of the rights of sovereignty by the legitimate
government in the territory occupied by the enemy military
forces, because the authority of the legitimate power to
govern has passed into the hands of the occupant (Article 43,
Hague Regulations), the political laws which prescribe the
reciprocal rights, duties and obligation of government and
citizens, are suspended or in abeyance during military
occupation (Co Kim cham vs. Valdez Tan Keh and
dizon, supra), for the only reason that as they exclusively
bear relation to the ousted legitimate government, they are
inoperative or not applicable to the government established
by the occupant; that the crimes against national security,
such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's
country, as well as those against public order, such as
rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as
crimes against the legitimate government, are also
suspended or become inapplicable as against the occupant,
because they can not be committed against the latter
(Peralta vs. Director of Prisons, supra); and that, while the
offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against
the invader for the reason above stated, unless adopted by
him, were also inoperative as against the ousted government
for the latter was not responsible for the preservation of the
public order in the occupied territory, yet article 114 of the
said Revised Penal Code, was applicable to treason
committed against the national security of the legitimate
government, because the inhabitants of the occupied
territory were still bound by their allegiance to the latter
during the enemy occupation;
Considering that, although the military occupant is enjoined
to respect or continue in force, unless absolutely prevented
by the circumstances, those laws that enforce public order
and regulate the social and commercial life of the country, he
has, nevertheless, all the powers of de facto government and
may, at his pleasure, either change the existing laws or make
new ones when the exigencies of the military service demand
such action, that is, when it is necessary for the occupier to
do so for the control of the country and the protection of his
army, subject to the restrictions or limitations imposed by
the Hague Regulations, the usages established by civilized
nations, the laws of humanity and the requirements of public
conscience (Peralta vs.Director of Prisons, supra; 1940 United
States Rules of Land Warfare 76, 77); and that, consequently,
all acts of the military occupant dictated within these
limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the
legitimate government which have not been adopted, as well
and those which, though continued in force, are in conflict
with such laws and orders of the occupier, shall be
considered as suspended or not in force and binding upon
said inhabitants;
Considering that, since the preservation of the allegiance or
the obligation of fidelity and obedience of a citizen or subject
to his government or sovereign does not demand from him a
positive action, but only passive attitude or forbearance from
adhering to the enemy by giving the latter aid and comfort,
the occupant has no power, as a corollary of the preceding
consideration, to repeal or suspend the operation of the law
of treason, essential for the preservation of the allegiance
owed by the inhabitants to their legitimate government, or
compel them to adhere and give aid and comfort to him;
because it is evident that such action is not demanded by the
exigencies of the military service or not necessary for the
control of the inhabitants and the safety and protection of his
army, and because it is tantamount to practically transfer
temporarily to the occupant their allegiance to the titular
government or sovereign; and that, therefore, if an
inhabitant of the occupied territory were compelled illegally
by the military occupant, through force, threat or
intimidation, to give him aid and comfort, the former may
lawfully resist and die if necessary as a hero, or submit
thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of
suspended allegiance would lead to disastrous consequences
for small and weak nations or states, and would be
repugnant to the laws of humanity and requirements of
public conscience, for it would allow invaders to legally
recruit or enlist the Quisling inhabitants of the occupied
territory to fight against their own government without the
latter incurring the risk of being prosecuted for treason, and
even compel those who are not aid them in their military
operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus
deprive them all of their own independence or sovereignty —
such theory would sanction the action of invaders in forcing
the people of a free and sovereign country to be a party in
the nefarious task of depriving themselves of their own
freedom and independence and repressing the exercise by
them of their own sovereignty; in other words, to commit a
political suicide;
(2) Considering that the crime of treason against the
government of the Philippines defined and penalized in
article 114 of the Penal Code, though originally intended to
be a crime against said government as then organized by
authority of the sovereign people of the United States,
exercised through their authorized representative, the
Congress and the President of the United States, was made,
upon the establishment of the Commonwealth Government
in 1935, a crime against the Government of the Philippines
established by authority of the people of the Philippines, in
whom the sovereignty resides according to section 1, Article
II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides
that "All laws of the Philippine Islands . . . shall remain
operative, unless inconsistent with this Constitution . . . and
all references in such laws to the Government or officials of
the Philippine Islands, shall be construed, in so far as
applicable, to refer to the Government and corresponding
officials under this constitution;
Considering that the Commonwealth of the Philippines was a
sovereign government, though not absolute but subject to
certain limitations imposed in the Independence Act and
incorporated as Ordinance appended to our Constitution,
was recognized not only by the Legislative Department or
Congress of the United States in approving the Independence
Law above quoted and the Constitution of the Philippines,
which contains the declaration that "Sovereignty resides in
the people and all government authority emanates from
them" (section 1, Article II), but also by the Executive
Department of the United States; that the late President
Roosevelt in one of his messages to Congress said, among
others, "As I stated on August 12, 1943, the United States in
practice regards the Philippines as having now the status as a
government of other independent nations — in fact all the
attributes of complete and respected nationhood"
(Congressional Record, Vol. 29, part 6, page 8173); and that it
is a principle upheld by the Supreme Court of the United
States in many cases, among them in the case of
Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, 696)
that the question of sovereignty is "a purely political question,
the determination of which by the legislative and executive
departments of any government conclusively binds the
judges, as well as all other officers, citizens and subjects of
the country.
Considering that section I (1) of the Ordinance appended to
the Constitution which provides that pending the final and
complete withdrawal of the sovereignty of the United States
"All citizens of the Philippines shall owe allegiance to the
United States", was one of the few limitations of the
sovereignty of the Filipino people retained by the United
States, but these limitations do not away or are not
inconsistent with said sovereignty, in the same way that the
people of each State of the Union preserves its own
sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to reason
may be committed against the Federal as well as against the
State Government, in the same way treason may have been
committed during the Japanese occupation against the
sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that the
change of our form of government from Commonwealth to
Republic does not affect the prosecution of those charged
with the crime of treason committed during the
Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII
of our Constitution provides that "The government
established by this constitution shall be known as the
Commonwealth of the Philippines. Upon the final and
complete withdrawal of the sovereignty of the United States
and the proclamation of Philippine independence, the
Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines";
This Court resolves, without prejudice to write later on a
more extended opinion, to deny the petitioner's petition, as
it is hereby denied, for the reasons above set forth and for
others to be stated in the said opinion, without prejudice to
concurring opinion therein, if any. Messrs. Justices Paras and
Hontiveros dissent in a separate opinion. Mr. justice Perfecto
concurs in a separate opinion.
Separate Opinions
PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot
be committed in peace time. While there is peace, there are
no traitors. Treason may be incubated when peace reigns.
Treasonable acts may actually be perpetrated during peace,
but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state
as a measure of self-defense and self-preservation. The law
of treason is an emergency measure. It remains dormant
until the emergency arises. But as soon as war starts, it is
relentlessly put into effect. Any lukewarm attitude in its
enforcement will only be consistent with national harakiri. All
war efforts would be of no avail if they should be allowed to
be sabotaged by fifth columnists, by citizens who have sold
their country out to the enemy, or any other kind of traitors,
and this would certainly be the case if he law cannot be
enforced under the theory of suspension.
Petitioner's thesis that allegiance to our government was
suspended during enemy occupation is advanced in support
of the proposition that, since allegiance is identical with
obedience to law, during the enemy occupation, the laws of
the Commonwealth were suspended. Article 114 of the
Revised Penal Code, the law punishing treason, under the
theory, was one of the laws obedience to which was also
suspended.
Allegiance has been defined as the obligation for fidelity and
obedience which the individual owes to his government or
his sovereign in return for the protection which he receives.
"Allegiance", as the return is generally used, means fealty or
fidelity to the government of which the person is either a
citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2
Cranch), 64, 120; 2 Law. ed., 208.
"Allegiance" was said by Mr. Justice Story to be "nothing
more than the tie or duty of obedience of a subject to the
sovereign, under whose protection he is." United
States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law.
ed., 890.
Allegiance is that duty which is due from every citizen to the
state, a political duty binding on him who enjoys the
protection of the Commonwealth, to render service and
fealty to the federal government. It is that duty which is
reciprocal to the right of protection, arising from the political
relations between the government and the citizen.
Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and
obedience which the individual owes to the government
under which he lives, or to his sovereign, in return for the
protection which he receives. It may be an absolute and
permanent obligation, or it may be a qualified and temporary
one. A citizen or subject owes an absolute and permanent
allegiance to his government or sovereign, or at least until, by
some open and distinct act, he renounces it and becomes a
citizen or subject of another government or sovereign, and
an alien while domiciled in a country owes it a temporary
allegiance, which is continuous during his residence.
Carlisle vs.United States, 83 U.S. (16 Wall.), 147, 154; 21 Law
ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or ligament
which binds the subject to the King, in return for that
protection which the King affords the subject. Allegiance,
both expressed and implied, is of two sorts, the one natural,
the other local, the former being perpetual, the latter
temporary. Natural allegiance is such as is due from all men
born within the King's dominions immediately upon their
birth, for immediately upon their birth they are under the
King's protection. Natural allegiance is perpetual, and for this
reason, evidently founded on the nature of government.
Allegiance is a debt due from the subject upon an implied
contract with the prince that so long as the one affords
protection the other will demean himself faithfully.
Natural-born subjects have a great variety of rights which
they acquire by being born within the King's liegance, which
can never be forfeited but by their own misbehaviour; but
the rights of aliens are much more circumscribed, being
acquired only by residence, and lost whenever they remove.
If an alien could acquire a permanent property in lands, he
must owe an allegiance equally permanent to the King, which
would probably be inconsistent with that which he owes his
natural liege lord; besides, that thereby the nation might, in
time, be subject to foreign influence and feel many other
inconveniences." Indians within the state are not aliens, but
citizens owing allegiance to the government of a state, for
they receive protection from the government and are subject
to its laws. They are born in allegiance to the government of
the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words
and Phrases, Permanent ed., 226-227.)
Allegiance. — Fealty or fidelity to the government of which
the person is either a citizen or subject; the duty which is due
from every citizen to the state; a political duty, binding on
him who enjoys the protection of the commonwealth, to
render service and fealty to the federal government; the
obligation of fidelity and obedience which the individual
owes to the government or to the sovereign under which he
lives in return for the protection he receives; that duty is
reciprocal to the right of protection he receives; that duty
which is reciprocal to the right of protection, arising from the
political relations between the government and the citizen.
Classification. — Allegiance is of four kinds, namely: (1)
Natural allegiance — that which arises by nature and birth; (2)
acquired allegiance — that arising through some
circumstance or act other than birth, namely, by denization
or naturalization; (3) local allegiance-- that arising from
residence simply within the country, for however short a
time; and (4) legal allegiance — that arising from oath, taken
usually at the town or leet, for, by the common law, the oath
of allegiance might be tendered to every one upon attaining
the age of twelve years. (3 C.J.S., p.885.)
Allegiance. — the obligation of fidelity and obedience which
the individual owes to the government under which he lives,
or to his sovereign in return for the protection he receives. 15
R.C.L., 140. (Ballentine Law Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the
tie which binds the citizen to his state — the obligation of
obedience and support which he owes to it. The state is the
political person to whom this liege fealty is due. Its substance
is the aggregate of persons owing this allegiance. The
machinery through which it operates is its government. The
persons who operate this machinery constitute its magistracy.
The rules of conduct which the state utters or enforces are its
law, and manifest its will. This will, viewed as legally supreme,
is its sovereignty. (W.W. Willoughby, Citizenship and
Allegiance in Constitutional and International Law, 1
American Journal of International Law, p. 915.).
The obligations flowing from the relation of a state and its
nationals are reciprocal in character. This principle had been
aptly stated by the Supreme Court of the United States in its
opinion in the case of Luria vs. United States:
Citizenship is membership in a political society and implies a
duty of allegiance on the part of the member and a duty
protection on the part of the society. These are reciprocal
obligations, one being a compensation for the other. (3
Hackworth, Digest of International Law, 1942 ed., p.6.)
Allegiance. — The tie which binds the citizen to the
government, in return for the protection which the
government affords him. The duty which the subject owes to
the sovereign, correlative with the protection received.
It is a comparatively modern corruption of ligeance (ligeantia),
which is derived from liege (ligius), meaning absolute or
unqualified. It signified originally liege fealty, i. e., absolute
and qualified fealty. 18 L. Q. Rev., 47.
xxx xxx xxx
Allegiance may be an absolute and permanent obligation, or
it may be a qualified and temporary one; the citizen or
subject owes the former to his government or sovereign,
until by some act he distinctly renounces it, whilst the alien
domiciled in the country owes a temporary and local
allegiance continuing during such residence.
(Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law. ed.,
426. (1 Bouvier's Law Dictionary, p. 179.).
The above quotations express ideas that do not fit exactly
into the Philippine pattern in view of the revolutionary
insertion in our Constitution of the fundamental principle
that "sovereignty resides in the people and all government
authority emanates from them." (Section 1, Article II.) The
authorities above quoted, judges and juridical publicists
define allegiance with the idea that sovereignty resides
somewhere else, on symbols or subjects other than the
people themselves. Although it is possible that they had
already discovered that the people and only the people are
the true sovereign, their minds were not yet free from the
shackles of the tradition that the powers of sovereignty have
been exercised by princes and monarchs, by sultans and
emperors, by absolute and tyrannical rules whose ideology
was best expressed in the famous words of one of the kings
of France: "L'etat c'est moi," or such other persons or group
of persons posing as the government, as an entity different
and in opposition to the people themselves. Although
democracy has been known ever since old Greece, and
modern democracies in the people, nowhere is such principle
more imperative than in the pronouncement embodied in
the fundamental law of our people.
To those who think that sovereignty is an attribute of
government, and not of the people, there may be some
plausibility in the proposition that sovereignty was
suspended during the enemy occupation, with the
consequence that allegiance must also have been suspended,
because our government stopped to function in the country.
But the idea cannot have any place under our Constitution. If
sovereignty is an essential attribute of our people, according
to the basic philosophy of Philippine democracy, it could not
have been suspended during the enemy occupation.
Sovereignty is the very life of our people, and there is no such
thing as "suspended life." There is no possible middle
situation between life and death. Sovereignty is the very
essence of the personality and existence of our people. Can
anyone imagine the possibility of "suspended personality" or
"suspended existence" of a people? In no time during enemy
occupation have the Filipino people ceased to be what they
are.
The idea of suspended sovereignty or suspended allegiance is
incompatible with our Constitution.
There is similarity in characteristics between allegiance to the
sovereign and a wife's loyalty to her husband. Because some
external and insurmountable force precludes the husband
from exercising his marital powers, functions, and duties and
the wife is thereby deprived of the benefits of his protection,
may the wife invoke the theory of suspended loyalty and may
she freely share her bed with the assailant of their home?
After giving aid and comfort to the assailant and allowing him
to enjoy her charms during the former's stay in the invaded
home, may the wife allege as defense for her adultery the
principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of
independence on July 4, 1946, is unacceptable. We have
already decided in Brodett vs. De la Rosa and Vda. de Escaler
(p. 752, ante) that the Constitution of the Republic is the
same as that of the Commonwealth. The advent of
independence had the effect of changing the name of our
Government and the withdrawal by the United States of her
power to exercise functions of sovereignty in the Philippines.
Such facts did not change the sovereignty of the Filipino
people. That sovereignty, following our constitutional
philosophy, has existed ever since our people began to exist.
It has been recognized by the United States of America, at
least since 1935, when President Roosevelt approved our
Constitution. By such act, President Roosevelt, as spokesman
of the American people, accepted and recognized the
principle that sovereignty resides in the people that is, that
Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized
long before the proclamation of independence on July 4,
1946. Since the early part of the Pacific war, President
Quezon had been sitting as representative of a sovereign
people in the Allied War Council, and in June, 1945, the same
Filipino people took part — outstanding and brilliant, it may
be added — in the drafting and adoption of the charter of the
United Nations, the unmistakable forerunner of the future
democratic federal constitution of the world government
envisioned by all those who adhere to the principle of unity
of all mankind, the early realization of which is anxiously
desired by all who want to be spared the sufferings, misery
and disaster of another war.
Under our Constitution, the power to suspend laws is of
legislative nature and is lodged in Congress. Sometimes it is
delegated to the Chief Executive, such as the power granted
by the Election Code to the President to suspend the election
in certain districts and areas for strong reasons, such as when
there is rebellion, or a public calamity, but it has never been
exercised by tribunals. The Supreme Court has the power to
declare null and void all laws violative of the Constitution, but
it has no power, authority, or jurisdiction to suspend or
declare suspended any valid law, such as the one on treason
which petitioner wants to be included among the laws of the
Commonwealth which, by his theory of suspended allegiance
and suspended sovereignty, he claims have been suspended
during the Japanese occupation.
Suppose President Quezon and his government, instead of
going from Corregidor to Australia, and later to Washington,
had fled to the mountains of Luzon, and a group of Filipino
renegades should have killed them to serve the interests of
the Japanese imperial forces. By petitioner's theory, those
renegades cannot be prosecuted for treason or for rebellion
or sedition, as the laws punishing them were suspended.
Such absurd result betrays the untenability of the theory.
"The defense of the State is a prime duty of Government, and
in the fulfillment of that duty all citizens may be required by
law to render personal, military or civil service." Thus, section
2 of Article II of the Constitution provides: That duty of
defense becomes more imperative in time of war and when
the country is invaded by an aggressor nation. How can it be
fulfilled if the allegiance of the citizens to the sovereign
people is suspended during enemy occupation? The framers
of the Constitution surely did not entertain even for the
moment the absurdity that when the allegiance of the
citizens to the sovereign people is more needed in the
defense of the survival of the state, the same should be
suspended, and that upon such suspension those who may
be required to render personal, military or civil service may
claim exemption from the indispensable duty of serving their
country in distress.
Petitioner advances the theory that protection in the
consideration of allegiance. He argues that the
Commonwealth Government having been incapacitated
during enemy occupation to protect the citizens, the latter
were relieved of their allegiance to said government. The
proposition is untenable. Allegiance to the sovereign is an
indispensable bond for the existence of society. If that bond
is dissolved, society has to disintegrate. Whether or not the
existence of the latter is the result of the social compact
mentioned by Roseau, there can be no question that
organized society would be dissolved if it is not united by the
cohesive power of the citizen's allegiance. Of course, the
citizens are entitled to the protection of their government,
but whether or not that government fulfills that duty, is
immaterial to the need of maintaning the loyalty and fidelity
of allegiance, in the same way that the physical forces of
attraction should be kept unhampered if the life of an
individual should continue, irrespective of the ability or
inability of his mind to choose the most effective measures of
personal protection.
After declaring that all legislative, executive, and judicial
processes had during and under the Japanese regime,
whether executed by the Japanese themselves or by Filipino
officers of the puppet government they had set up, are null
and void, as we have done in our opinions in Co Kim Cham vs.
Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta vs.
Director of Prison (75, Phil., 285), and in several other cases
where the same question has been mentioned, we cannot
consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the
occupation were null and void, and as we cannot imagine the
existence of organized society, such as the one constituted by
the Filipino people, without laws of the Commonwealth were
the ones in effect during the occupation and the only ones
that could claim obedience from our citizens.
Petitioner would want us to accept the thesis that during the
occupation we owed allegiance to the enemy. To give way to
that paradoxical and disconcerting allegiance, it is suggested
that we accept that our allegiance to our legitimate
government was suspended. Petitioner's proposition has to
fall by its own weight, because of its glaring absurdities.
Allegiance, like its synonyms, loyalty and fidelity, is based on
feelings of attraction, love, sympathy, admiration, respect,
veneration, gratitude, amity, understanding, friendliness.
These are the feelings or some of the feelings that bind us to
our own people, and are the natural roots of the duty of
allegiance we owe them. The enemy only provokes repelling
and repulsive feelings — hate, anger, vexation, chagrin,
mortification, resentment, contempt, spitefulness. The
natural incompatibility of political, social and ethical
ideologies between our people and the Japanese, making
impossible the existence of any feeling of attraction between
them, aside from the initial fact that the Japanese invaded
our country as our enemy, was aggravated by the morbid
complexities of haughtiness, braggadocio and beastly
brutality of the Nippon soldiers and officers in their dealings
with even the most inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of
our face, offer him the other to be further slapped, may
appear to be divinely charitable, but to make them a reality,
it is necessary to change human nature. Political actions, legal
rules and judicial decisions deal with human relations, taking
man as he is, not as he should be. To love the enemy is not
natural. As long as human pyschology remains as it is, the
enemy shall always be hated. Is it possible to conceive an
allegiance based on hatred?
The Japanese, having waged against us an illegal war
condemned by prevailing principles of international law,
could not have established in our country any government
that can be legally recognized as de facto. They came as
bandits and ruffians, and it is inconceivable that banditry and
ruffianism can claim any duty of allegiance — even a
temporary one — from a decent people.
One of the implications of petitioner's theory, as intimated
somewhere, is that the citizens, in case of invasion, are free
to do anything not forbidden by the Hague Conventions.
Anybody will notice immediately that the result will be the
doom of small nations and peoples, by whetting the
covetousness of strong powers prone on imperialistic
practices. In the imminence of invasion, weak-hearted
soldiers of the smaller nations will readily throw away their
arms to rally behind the paladium of the invaders.
Two of the three great departments of our Government have
already rejected petitioner's theory since September 25,
1945, the day when Commonwealth Act No. 682 took effect.
By said act, creating the People's Court to try and decide all
cases of crime against national security "committed between
December 8, 1941 and September 2, 1945," (section 2), the
legislative and executive departments have jointly declared
that during the period above mentioned, including the time
of Japanese occupation, all laws punishing crimes against
national security, including article 114 of the Revised Penal
Code, punishing treason, had remained in full effect and
should be enforced.
That no one raised a voice in protest against the enactment
of said act and that no one, at the time the act was being
considered by the Senate and the House of Representatives,
ever dared to expose the uselessness of creating a People's
Court to try crime which, as claimed by petitioner, could not
have been committed as the laws punishing them have been
suspended, is a historical fact of which the Supreme Court
may take judicial notice. This fact shows universal and
unanimous agreement of our people that the laws of the
Commonwealth were not suspended and that the theory of
suspended allegiance is just an afterthought provoked by a
desperate effort to help quash the pending treason cases at
any cost.
Among the arguments adduced in favor of petitioner's theory
is that it is based on generally accepted principles of
international law, although this argument becomes futile by
petitioner's admission that the theory is advantageous to
strong powers but harmful to small and weak nations, thus
hinting that the latter cannot accept it by heart. Suppose we
accept at face value the premise that the theories, urged by
petitioner, of suspended allegiance and suspended
sovereignty are based on generally accepted principles of
international law. As the latter forms part of our laws by
virtue of the provisions of section 3 of Article II of the
Constitution, it seems that there is no alternative but to
accept the theory. But the theory has the effect of
suspending the laws, especially those political in nature.
There is no law more political in nature than the Constitution
of the Philippines. The result is an inverted reproduction of
the Greek myth of Saturn devouring his own children. Here,
under petitioner's theory, the offspring devours its parent.
Can we conceive of an instance in which the Constitution was
suspended even for a moment?
There is conclusive evidence that the legislature, as
policy-determining agency of government, even since the
Pacific war started on December 7, 1941, intimated that it
would not accept the idea that our laws should be suspended
during enemy occupation. It must be remembered that in the
middle of December, 1941, when Manila and other parts of
the archipelago were under constant bombing by Japanese
aircraft and enemy forces had already set foot somewhere in
the Philippines, the Second National Assembly passed
Commonwealth Act No. 671, which came into effect on
December 16, 1941. When we approved said act, we started
from the premise that all our laws shall continue in effect
during the emergency, and in said act we even went to the
extent of authorizing the President "to continue in force laws
and appropriations which would lapse or otherwise become
inoperative," (section 2, [d]), and also to "promulgate such
rules and regulations as he may deem necessary to carry out
the national policy," (section 2), that "the existence of war
between the United States and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to
invest the President with extraordinary powers in order to
meet the resulting emergency." (Section 1.) To give emphasis
to the intimation, we provided that the rules and regulations
provided "shall be in force and effect until the Congress of
the Philippines shall otherwise provide," foreseeing the
possibility that Congress may not meet as scheduled as a
result of the emergency, including invasion and occupation
by the enemy. Everybody was then convinced that we did not
have available the necessary means of repelling effectivity
the enemy invasion.
Maybe it is not out of place to consider that the acceptance
of petitioner's theory of suspended allegiance will cause a
great injustice to those who, although innocent, are now
under indictment for treason and other crimes involving
disloyalty to their country, because their cases will be
dismissed without the opportunity for them to revindicate
themselves. Having been acquitted upon a mere legal
technicality which appears to us to be wrong, history will
indiscriminality classify them with the other accused who
were really traitors to their country. Our conscience revolts
against the idea of allowing the innocent ones to go down in
the memory of future generations with the infamous stigma
of having betrayed their own people. They should not be
deprived of the opportunity to show through the due process
of law that they are free from all blame and that, if they were
really patriots, they acted as such during the critical period of
test.
HILADO, J., concurring:
I concur in the result reached in the majority opinion to the
effect that during the so-called Japanese occupation of the
Philippines (which was nothing more than the occupation of
Manila and certain other specific regions of the Islands which
constituted the minor area of the Archipelago) the allegiance
of the citizens of this country to their legitimate government
and to the United States was not suspended, as well as the
ruling that during the same period there was no change of
sovereignty here; but my reasons are different and I proceed
to set them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which
were multiplied more than a hundred-fold in World War II,
the nations had evolved certain rules and principles which
came to be known as International Law, governing their
conduct with each other and toward their respective citizens
and inhabitants, in the armed forces or civilian life, in time of
peace or in time of war. During the ages which preceded that
first world conflict the civilized governments had no
realization of the potential excesses of which "men's
inhumanity to man" could be capable. Up to that time war
was, at least under certain conditions, considered as
sufficiently justified, and the nations had not on that account,
proscribed nor renounced it as an instrument of national
policy, or as a means of settling international disputes. It is
not for us now to dwell upon the reasons accounting for this
historical fact. Suffice it to recognize its existence in history.
But when in World War I civilized humanity saw that war
could be, as it actually was, employed for entirely different
reasons and from entirely different motives, compared to
previous wars, and the instruments and methods of warfare
had been so materially changed as not only to involve the
contending armed forces on well defined battlefields or areas,
on land, in the sea, and in the air, but to spread death and
destruction to the innocent civilian populations and to their
properties, not only in the countries engaged in the conflict
but also in neutral ones, no less than 61 civilized nations and
governments, among them Japan, had to formulate and
solemnly subscribe to the now famous Briand-Kellogg Pact in
the year 1928. As said by Justice Jackson of the United States
Supreme Court, as chief counsel for the United States in the
prosecution of "Axis war criminals," in his report to President
Truman of June 7, 1945:
International law is not capable of development by legislation,
for there is no continuously sitting international legislature.
Innovations and revisions in international law are brought
about by the action of governments designed to meet a
change circumstances. It grows, as did the common law,
through decisions reached from time to time in adopting
settled principles to new situations.
xxx xxx xxx
After the shock to civilization of the war of 1914-1918,
however, a marked reversion to the earlier and sounder
doctrines of international law took place. By the time the
Nazis came to power it was thoroughly established that
launching an aggressive war or the institution of war by
treachery was illegal and that the defense of legitimate
warfare was no longer available to those who engaged in
such an enterprise. It is high time that we act on the juridical
principle that aggressive war-making is illegal and criminal.
The re-establishment of the principle of justifiable war is
traceable in many steps. One of the most significant is the
Briand-Kellogg Pact of 1928 by which Germany, Italy,
and Japan, in common with the United States and practically
all the nations of the world, renounced war as an instrument
of national policy, bound themselves to seek the settlement
of disputes only by pacific means, and condemned recourse
to war for the solution of international controversies.
Unless this Pact altered the legal status of wars of aggression,
it has no meaning at all and comes close to being an act of
deception. In 1932 Mr. Henry L. Stimson, as United States
Secretary of State, gave voice to the American concept of its
effect. He said, "war between nations was renounced by the
signatories of the Briand-Kellogg Treaty. This means that it
has become illegal throughout practically the entire world. It
is no longer to be the source and subject of rights. It is no
longer to be the principle around which the duties, the
conduct, and the rights of nations revolve. It is an illegal
thing. . . . By that very act we have made obsolete many legal
precedents and have given the legal profession the task of
re-examining many of its Codes and treaties.
This Pact constitutes only one reversal of the viewpoint that
all war is legal and has brought international law into
harmony with the common sense of mankind —
that unjustifiable war is a crime.
Without attempting an exhaustive catalogue, we may
mention the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, signed by the
representatives of forty-eight governments, which declared
that "a war of aggression constitutes .. an International
crime. . . .
The Eight Assembly of the League of Nations in 1927, on
unanimous resolution of the representatives of forty-eight
member-nations, including Germany, declared that a war of
aggression constitutes an international crime. At the Sixth
Pan-American Conference of 1928, the twenty-one American
Republics unanimously adopted a resolution stating that "war
of aggression constitutes an international crime against the
human species."
xxx xxx xxx
We therefore propose to change that a war of aggression is
a crime, and that modern international law has abolished the
defense that those who incite or wage it are engaged in
legitimate business. Thus may the forces of the law be
mobilized on the side of peace. ("U.S.A. — An American
Review," published by the United States Office of War
Information, Vol. 2, No. 10; emphasis supplied.).
When Justice Jackson speaks of "a marked reversion to the
earlier and sounder doctrines of international law" and "the
re-establishment of the principle of justifiable war," he has in
mind no other than "the doctrine taught by Grotius, the
father of international law, that there is a distinction
between the just and the unjust war — the war of defense
and the war of aggression" to which he alludes in an earlier
paragraph of the same report.
In the paragraph of said report immediately preceding the
one last above mentioned Justice Jackson says that
"international law as taught in the 19th and the early part of
the 20th century generally declared that war-making was not
illegal and no crime at law." But, as he says in one of the
paragraphs hereinabove quoted from that report, the
Briand-Kellogg Pact constitutes a reversal of the view-point
that all war is legal and has brought international law into
harmony with the common sense of mankind — that
unjustifiable war is a crime. Then he mentions as other
reversals of the same viewpoint, the Geneva Protocol of 1924
for the Pacific Settlement of International Disputes, declaring
that a war of aggression constitutes an international crime;
the 8th assembly of the League of Nations in 1927, declaring
that a war of aggression constitutes an international crime;
and the 6th Pan-American conference of 1928, which
unanimously adopted a resolution stating that war of
aggression constitutes an international crime against the
human species: which enumeration, he says, is not an
attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific,
first, against the United States, and later, in rapid succession,
against other allied nations, was a war of aggression and
utterly unjustifiable. More aggressive still, and more
unjustifiable, as admitted on all sides, was its attack against
the Philippines and its consequent invasion and occupation of
certain areas thereof.
Some of the rules and principles of international law which
have been cited for petitioner herein in support of his theory
of suspended allegiance, have been evolved and accepted
during those periods of the history of nations when all war
was considered legal, as stated by Justice Jackson, and the
others have reference to military occupation in the course of
really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years
before she started the aggressive war which threw the entire
Pacific area into a seething cauldron from the last month of
1941 of the first week of September, 1945, expressly agreed
to outlaw, proscribe and renounce war as an instrument of
national policy, and bound herself to seek the settlement of
her disputes with other nations only by pacific means. Thus
she expressly gave her consent to that modification of the
then existing rules and principles of international law
governing the matter. With the modification, all the
signatories to the pact necessarily accepted and bound
themselves to abide by all its implications, among them the
outlawing, prescription and renunciation of military
occupation of another nation's territory in the course of a
war thus outlawed, proscribed and renounced. This is only
one way of saving that the rules and principles of
international law therefore existing on the subject of military
occupation were automatically abrogated and rendered
ineffective in all future cases of war coming under the ban
and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression
constitutes an international crime; if such a war is an
international crime against the human species: a nation
which occupies a foreign territory in the course of such a war
cannot possibly, under any principle of natural or positive law,
acquire or posses any legitimate power or right growing out
or incident to such occupation. Concretely, Japan in
criminally invading the Philippines and occupying certain
portions of its territory during the Pacific war, could not have
nor exercise, in the legal sense — and only this sense should
we speak here — with respect to this country and its citizens,
any more than could a burglar breaking through a man's
house pretends to have or to exercise any legal power or
right within that house with respect either to the person of
the owner or to his property. To recognize in the first
instance any legal power or right on the part of the invader,
and in the second any legal power or right on the part of the
burglar, the same as in case of a military occupant in the
course of a justifiable war, would be nothing short of
legalizing the crime itself. It would be the most monstrous
and unpardonable contradiction to prosecute, condemn and
hang the appropriately called war criminals of Germany, Italy,
and Japan, and at the same time recognize any lawfulness in
their occupation invaded. And let it not be forgotten that the
Philippines is a member of the United Nations who have
instituted and conducted the so-called war crimes trials.
Neither should we lose sight of the further fact that this
government has a representative in the international
commission currently trying the Japanese war criminals in
Tokyo. These facts leave no room for doubt that this
government is in entire accord with the other United Nations
in considering the Pacific war started by Japan as a crime. Not
only this, but this country had six years before the outbreak
of the Pacific war already renounced war as an instrument of
national policy (Constitution, Article II, section 2), thus in
consequence adopting the doctrine of the Briand-Kellogg
Pact.
Consequently, it is submitted that it would be absolutely
wrong and improper for this Court to apply to the occupation
by Japan of certain areas of the Philippines during that war
the rules and principles of international law which might be
applicable to a military occupation occurring in the course of
a justifiable war. How can this Court recognize any lawfulness
or validity in that occupation when our own government has
sent a representative to said international commission in
Tokyo trying the Japanese "war criminals" precisely for the
"crimes against humanity and peace" committed by them
during World War II of which said occupation was but part
and parcel? In such circumstances how could such
occupation produce no less an effect than the suspension of
the allegiance of our people to their country and
government?
(b) But even in the hypothesis — and not more than a mere
hypothesis — that when Japan occupied the City of Manila
and certain other areas of the Philippines she was engaged in
a justifiable war, still the theory of suspended allegiance
would not hold good. The continuance of the allegiance owed
to a notion by its citizens is one of those high privileges of
citizenship which the law of nations denies to the occupant
the power to interfere with.
. . . His (of occupant) rights are not, however, commensurate
with his power. He is thus forbidden to take certain measures
which he may be able to apply, and that irrespective of their
efficacy. The restrictions imposed upon him are in theory
designed to protect the individual in the enjoyment of some
highly important privileges. These concern his allegiance to
the de jure sovereign, his family honor and domestic relations,
religious convictions, personal service, and connection with
or residence in the occupied territory.
The Hague Regulations declare that the occupant is forbidden
to compel the inhabitants to swear allegiance to the hostile
power. . . . (III Hyde, International Law, 2d revised ed., pp.
1898-1899.)
. . . Nor may he (occupant) compel them (inhabitants) to take
an oath of allegiance. Since the authority of the occupant is
not sovereignty, the inhabitants owe no temporary allegiance
to him. . . . (II Oppenheim, International Law, pp. 341-344.)
The occupant's lack of the authority to exact an oath of
allegiance from the inhabitants of the occupied territory is
but a corollary of the continuance of their allegiance to their
own lawful sovereign. This allegiance does not consist merely
in obedience to the laws of the lawful sovereign, but more
essentially consists in loyalty or fealty to him. In the same
volume and pages of Oppenheim's work above cited, after
the passage to the effect that the inhabitants of the occupied
territory owe no temporary allegiance to the occupant it is
said that "On the other hand, he may compel them to take an
oath — sometimes called an 'oath of neutrality' — . . .
willingly to submit to his 'legitimate commands.' Since,
naturally, such "legitimate commands" include the
occupant's laws, it follows that said occupant, where the rule
is applicable, has the right to compel the inhabitants to take
an oath of obedience to his laws; and since according to the
same rule, he cannot exact from the inhabitants an oath of
obedience to his laws; and since, according to the same rule,
he cannot exact from the inhabitants an oath of allegiance, it
follows that obedience to his laws, which he can exact from
them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the
last degree. To say that when the one's country is unable to
afford him in its protection, he ceases to be bound to it by
the sacred ties of allegiance, is to advocate the doctrine that
precisely when his country is in such distress, and therefore
most needs his loyalty, he is absolved from the loyalty. Love
of country should be something permanent and lasting,
ending only in death; loyalty should be its worth offspring.
The outward manifestation of one or the other may for a
time be prevented or thwarted by the irresistible action of
the occupant; but this should not in the least extinguish nor
obliterate the invisible feelings, and promptings of the spirit.
And beyond the unavoidable consequences of the enemy's
irresistible pressure, those invisible feelings and promptings
of the spirit of the people should never allow them to act, to
speak, nor even to think a whit contrary to their love and
loyalty to the Fatherland. For them, indicted, to face their
country and say to it that, because when it was overrun and
vanquished by the barbarous invader and, in consequence
was disabled from affording them protection, they were
released from their sacred obligation of allegiance and loyalty,
and could therefore freely adhere to its enemy, giving him
aid and comfort, incurring no criminal responsibility therefor,
would only tend to aggravate their crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that
"Sovereignty resides in the people and all government
authority emanates from them." The Filipino people are the
self-same people before and after Philippine Independence,
proclaimed on July 4, 1946. During the life of the
Commonwealth sovereignty resided in them under the
Constitution; after the proclamation of independence that
sovereignty remained with them under the very same
fundamental law. Article XVIII of the said Constitution
stipulates that the government established thereby shall be
known as the Commonwealth of the Philippines; and that
upon the final and complete withdrawal of the sovereignty of
the United States and the proclamation of Philippine
independence, "The Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines."
Under this provision the Government of the Philippines
immediately prior to independence was essentially to be the
identical government thereafter — only the name of that
government was to be changed.
Both before and after the adoption of the Philippine
Constitution the people of the Philippines were and are
always the plaintiff in all criminal prosecutions, the case
being entitled: "The People of the Philippines vs. (the
defendant or defendants)." This was already true in
prosecutions under the Revised Penal Code containing the
law of treason. "The Government of the Philippines" spoken
of in article 114 of said Code merely represents the people of
the Philippines. Said code was continued, along with the
other laws, by Article XVI, section 2, of the Constitution which
constitutional provision further directs that "all references in
such laws to the Government or officials of the Philippine
Islands shall be construed, in so far as applicable, to refer to
the Government and corresponding officials under this
Constitution" — of course, meaning the Commonwealth of
the Philippines before, and the Republic of the Philippines
after, independence (Article XVIII). Under both governments
sovereignty resided and resides in the people (Article II,
section 1). Said sovereignty was never transferred from that
people — they are the same people who preserve it to this
day. There has never been any change in its respect.

If one committed treason againsts the People of the

Philippines before July 4, 1946, he continues to be criminally
liable for the crime to the same people now. And if, following
the literal wording of the Revised Penal Code, as continued
by the Constitution, that accused owed allegiance upon the
commission of the crime to the "Government of the
Philippines," in the textual words of the Constitution (Article
XVI, section 2, and XVIII) that was the same government
which after independence became known as the "Republic of
the Philippines." The most that can be said is that the
sovereignty of the people became complete and absolute
after independence — that they became, politically, fully of
age, to use a metaphor. But if the responsibility for a crime
against a minor is not extinguished by the mere fact of his
becoming of age, why should the responsibility for the crime
of treason committed against the Filipino people when they
were not fully politically independent be extinguished after
they acquire this status? The offended party continues to be
the same — only his status has changed.
G.R. No. L-533 August 20, 1946

RAMON RUFFY, ET AL., petitioners,

vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.

Placido C. Ramos for petitioners.

Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA.,
for respondents.

TUASON, J.:

This was a petition for prohibition, praying that the

respondents, the Chief of Staff and the General Court Martial
of the Philippine Army, be commanded to desist from further
proceedings in the trial of petitioners before that body.
Preliminary injunction having been denied by us and the
General Court Martial having gone ahead with the trial,
which eventually resulted in the acquittal of one of the
defendants, Ramon Ruffy, the dismissal of the case as to
another, Victoriano Dinglasan, and the conviction of Jose L.
Garcia, Prudente M. Francisco, Dominador Adeva and Andres
Fortus, the last-named four petitioners now seek in their
memorandum to convert the petition into one for certiorari,
with the prayer that the records of the proceedings before
the General Court Martial be ordered certified to this court
for review.

The ground of the petition was that the petitioners were not
subject to military law at the time the offense for which they
had been placed on trial was committed. In their
memorandum they have raised an additional question of law
— that the 93d Article of War is unconstitutional.

An outline of the petitioner's previous connection with the

Philippine Army, the Philippine Constabulary, and/or with
guerrilla organizations will presently be made. This outline is
based on allegations in the petition and the answer, and on
exhibits attached thereto and to the parties' memoranda,
exhibits which were offered in the course of the oral
argument and admitted without objection. The said exhibits
are public documents certified by the officials who had them
in custody in their official capacity. They are presumed to be
authentic, as we have no doubt they are.

It appears that at the outbreak of war on December 8, 1941,

Ramon Ruffy was the Provincial Commander, Prudente M.
Francisco, a junior officer, and Andres Fortus, a corporal, all
of the Philippine Constabulary garrison stationed in Mindoro.
When, on February 27, 1942, the Japanese forces landed in
Mindoro, Major Ruffy retreated to the mountains instead of
surrendering to the enemy, disbanded his company, and
organized and led a guerrilla outfit known as Bolo Combat
team of Bolo Area. Lieutenant Francisco, Corporal Fortus and
Jose L. Garcia, the last then a civilian joined Major Ruffy's
organization towards the latter part of 1942, while
Dominador Adeva and Victoriano Dinglasan, then likewise
civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a
lieutenant colonel of the Philippine Army, also took to the
hills of Panay and led the operation of the 6th Military
District, one of the districts into which the Philippine Army
had been divided before the war. About November, 1942,
Colonel Peralta succeeded in contacting the General
Headquarters of General MacArthur in Australia as the result
of which on February 13, 1943, the 6th Military District was
recognized by the Headquarters of the Southwest Pacific
Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th
Military District Colonel Peralta had extended its sphere of
operation to comprise Mindoro and Marinduque, and had,
on January 2, 1943, named Major Ruffy as Acting
Commander for those two provinces and Commanding
Officer of the 3rd Battalion, 66 Infantry 61st Division,
Philippine Corps. After the recognition, 2d Lieut. Prudente M.
Francisco, by virtue of Special Orders No. 99, dated
November 2, 1943, and signed by Enrique L. Jurado, Major,
OSE, Commanding, was assigned as S-3 in the Bolo Area.
Major, later Lieut. Col., Jurado, it should be noted, had been
dispatched by the 6th Military District to Mindoro to assume
operational control supervision over the Bolo Area unit and
to make and direct the necessary report to the Headquarters,
6th Military District, in Panay. On April 26, 1944, by General
Orders No. 40 of the 6th Military District, 2d Lieutenant
Francisco was promoted to the rank of 1st Lieutenant
(Brevet), effective April 15, 1944, subject to approval by the
President of the Philippines, and was re-assigned to the Bolo
Area. As to Andres Fortus he was assigned to the same Bolo
Area as probationary 3d lieutenant for two-month
probationary training, by the Headquarters of the 6th
Military District, as per Special Orders No. 70, dated May 15,
1944.
According to a memorandum of the Chief of Staff, 6th
Military District, dated January 1943, and signed by L.R.
Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and
Dominador Adeva were appointed 3d lieutenants, infantry as
of December 31, 1942. Garcia later was promoted to the rank
of captain, effective March 15, 1943, as per Special Orders No.
82, issued in the field, 6th Military District, and dated August
28, 1943. On May 24, 1943, Jose L. Garcia took his oath
before Captain Esteban P. Beloncio, then Acting Commanding
Officer, 3d Battalion, 66th Infantry Regiment, 61st Division,
6th Military District.
As has been said, the 6th Military District sent Lieut. Col.
Enrique L. Jurado to be Commanding Officer of the Bolo
Combat Team in Mindoro and to undertake other missions of
Military character. Pursuant to instructions, Colonel Jurado
on November 2, 1943, assigned Major Ruffy as Commanding
Officer of the Bolo Area with 3d Lieut. Dominador Adeva and
2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders
No. 99 dated November 2, 1943. In a memorandum of
Colonel Jurado for Major Ruffy bearing date 25 June, 1944, it
was stated that Captain Garcia had been given P5,000 for
palay and Lieut. Francisco P9,000, P5,000 for palay and
P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by
Colonel Jurado on June 8, 1944: Major Ruffy was relieved of
his assignment as Commanding Officer, Bolo Battalion, and
Capt. Esteban P. Beloncio was put in Ruffy's place. On
October 19, 1944, Lieut. Col. Jurado was slain allegedly by the
petitioners. After the commission of this crime, the
petitioners, it is alleged, seceded from the 6th Military
District. It was this murder which gave rise to petitioner's trial,
the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a
military order the pertinent paragraph of which stated: ". . .
as Commander in Chief of the Army and Navy of the United
States, I hereby call and order into the service of the armed
forces of the United States Army, for the period of the
existing emergency, and place under the command of the
general officer, United States Army, to be designated by the
Secretary of War, from time to time, all of the organized
military forces of the Government of the Commonwealth."
Following the issuance of President Roosevelt's order General
Douglas MacArthur was appointed Commanding General of
the United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant
Fortus, that "by the enemy occupation of the Philippines, the
National Defense Act and all laws and regulations creating
and governing the existence of the Philippine Army including
the Articles of War, were suspended and in abeyance during
such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from
Winthrop's Military Law and Precedents and the subsequent
paragraph which has been omitted furnish a complete
answer to petitioner's contention of the Philippines by
Japanese forces, the officers and men of the Philippine Army
did not cease to be fully in the service, though in a measure,'
only in a measure, they were not subject to the military
jurisdiction, if they were not active duty. In the latter case,
like officers and soldiers on leave of absence or held as
prisoners of war, they could not be held guilty of a breach of
the discipline of the command or of a neglect of duty, or
disobedience of orders, or mutiny, or subject to a military
trial therefor; but for an act unbecoming an officer and a
gentleman, or an act which constitutes an offense of the class
specified in the 95th Article of War, they may in general be
legally held subject to military jurisdiction and trial. "So a
prisoner of war, though not subject, while held by the enemy,
to the discipline of his own army, would, when exchanged of
paroled, be not exempt from liability for such offenses as
criminal acts or injuriuos conduct committed during his
captivity against other officers or soldiers in the same status."
(Winthrop's Military Law and Precedents, 2d Edition, pp. 91,
92.)
The rule invoked by counsel, namely, that laws of political
nature or affecting political relations are considered
superseded or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the
occupied territory. It is not intended for and does not bind
the enemies in arms. This is self-evident from the very nature
of things. The paradox of a contrary ruling should readily
manifest itself. Under the petitioner's theory the forces of
resistance operating in an occupied territory would have to
abide by the outlawing of their own existence. They would be
stripped of the very life-blood of an army, the right and the
ability to maintain order and discipline within the
organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American
Forces does not profit the petitioner's who were former
members of the Philippine Constabulary any more than does
the rule of war or international law they cite. The fall of
Bataan and Corregidor did not end the war. It did not, legally
or otherwise, keep the United States and the Commonwealth
of the Philippines from organizing a new army, regular or
irregular, out of new men and men in the old service who
had refused to surrender or who having surrendered, had
decided to carry on the fight through other diverse means
and methods. The fall of Corregidor and Bataan just marked
the beginning of the gigantic preparation for the gigantic
drive that was to fight its way to and beyond the Philippines
in fulfillment of General MacArthur's classic promise, "I shall
return." The heroic role which the guerrillas played in that
preparation and in the subsequent liberation of the
Philippines is now history.
Independently of their previous connection with the
Philippine Army and the Philippine Constabulary, Captain
Francisco and Lieutenant Fortus as well as Major Garcia and
Lieutenant Adeva were subject to military jurisdiction.
The 2d Article of War defines and enumerates the persons
subject to military law as follows:
Art. 2. Persons Subject to Military Law. — The following
persons are subject to these articles and shall be understood
as included in the term "any person subject to military law"
or "persons subject to military law," whenever used in these
articles:
(a) All officers, members of the Nurse Corps and soldiers
belonging to the Regular Force of the Philippine Army; all
reservists, from the dates of their call to active duty and
while on such active duty; all trainees undergoing military
instructions; and all other persons lawfully called, drafted, or
order to obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or
serving with the Army of the Philippines in the field in time of
war or when martial law is declared though not otherwise
subject to these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general
application of the clause in sub-paragraph (a); "and all other
persons lawfully called, drafted, or ordered into, or to duty
for training in, the said service, from the dates they are
required by the terms of the call, draft, or order to obey the
same." By their acceptance of appointments as officers in the
Bolo Area from the General Headquarters of the 6th Military
District, they became members of the Philippine Army
amendable to the Articles of War. The Bolo Area, as has been
seen, was a contigent of the 6th Military District which, as
has also been pointed out, had been recognized by and
placed under the operational control of the United States
Army in the Southwest Pacific. The Bolo Area received
supplies and funds for the salaries of its officers and men
from the Southwest Pacific Command. As officers in the Bolo
Area and the 6th Military District, the petitioners operated
under the orders of duly established and duly appointed
commanders of the United States Army.
The attitude of the enemy toward underground movements
did not affect the military status of guerrillas who had been
called into the service of the Philippine Army. If the invaders
refused to look upon guerrillas, without distinctions, as
legitimate troops, that did not stop the guerillas who had
been inducted into the service of the Philippine Army from
being component parts thereof, bound to obey military
status of guerrillas was to be judged not by the concept of Our conclusion, therefore, is that the petition has no merit
the army of the country for which they fought. and that it should be dismissed with costs. It is so ordered.

The constitutionality of the 93d Article of War is assailed. This Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and
article ordains "that any person subject to military law who Padilla, JJ., concur.
commits murder in time of was shall suffer death or
imprisonment for life, as the court martial may direct." It is
argued that since "no review is provided by that law to be
made by the Supreme Court, irrespective of whether the
punishment is for life imprisonment or death", it violates
Article VIII, section 2, paragraph 4, of the Constitution of the
Philippines which provides that "the National Assembly may
not deprive the Supreme Court of its original jurisdiction over
all criminal cases in which the penalty imposed is death or life
imprisonment."

We think the petitioners are in error. This error arose from

failure to perceive the nature of courts martial and the
sources of the authority for their creation.

Courts martial are agencies of executive character, and one

of the authorities "for the ordering of courts martial has been
held to be attached to the constitutional functions of the
President as Commander in Chief, independently of
legislation." (Winthrop's Military Law and Precedents, 2d
Edition, p. 49.) Unlike courts of law, they are not a portion of
the judiciary. "The Supreme Court of the United States
referring to the provisions of the Constitution authorizing
Congress to provide for the government of the army,
excepting military offenses from the civil jurisdiction, and
making the President Commander in Chief, observes as
follows: "These provisions show that Congress has the power
to provide for the trial and punishment of military and naval
offenses in the manner then and now practiced by civilized
nations, and that the power to do so is given without any
connection between it and the 3d Article of the United States;
indeed that the two powers are entirely independent of each
other."

"Not belonging to the judicial branch of the government, it

follows that courts-martial must pertain to the executive
department; and they are in fact simply instrumentalities of
the executive power, provided by Congress for the President
as Commander in Chief, to aid him in properly commanding
the army and navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military
representatives." (Winthrop's Military Law and Precedents,
2d Edition, p. 49.) Of equal interest Clode, 2 M. F., 361, says
of these courts in the British law: "It must never be lost sight
of that the only legitimate object of military tribunals is to aid
the Crown to maintain the discipline and government of the
Army." (Footnote No. 24, p. 49, Winthrop's Military Law and
Precedents, 2d Edition.)